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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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Busy week for your Bar Association.
SB 54 – Judicial Performance Evaluations. On Monday, February 4, the Senate Judiciary Committee heard several hours of testimony on the judicial performance evaluation bill. This bill was developed by Sen. Shaffer and Rep. T. Carroll following meetings with a working group of organizations and persons interested in improving the judicial performance evaluation program. The bill’s next stop is Senate Appropriations where the cost ($155,862) of creating a separate office of Judicial Performance Evaluation – one element of the bill – will be considered. The CBA testified in support of the bill but urged the Committee to accept amendments that are consistent with the proposals developed by the CBA’s Task Force on Judicial Performance Evaluation. Although the CBA Task Force worked with the larger group, some elements favored by the CBA were ultimately left out of the bill when it was introduced. Efforts to incorporate CBA amendments into the bill are ongoing.
HB 1055 – Business Entities Technical Corrections. The Senate Business Labor and Technology Committee gave unanimous approval to the CBA Business Law Section’s technical corrections bill for entity filing and compliance. The bill, which was developed with and supported by the Secretary of State’s Business Law Division, does not change any substantive law for entities in Colorado; instead, the bill clears up some on-line filing issues making the filing process easier and more efficient. The bill is scheduled for 2nd Reading in the Senate on Monday, February 11. Technical amendments to the technical amendment already adopted by the Business Labor and Technology Committee will be offered on 2nd Reading when the bill is called up.
HB 1148 – Adverse Possession. The 500 year old Common Law principle of Adverse Possession is about to undergo a 2008 face lift. Thanks, in large part, to the by-now famous case in Boulder County a bill is in the hopper to alter adverse possession. Interestingly, the bill as introduced already shows the requisite number of co-sponsors necessary to pass the bill in each house (33 in the House and 18 in the Senate), sending the message that this bill will pass in one form or another.
The sponsors of the bill are seeking to modify adverse possession by: requiring that a person claiming title by adverse possession have a “good faith belief” that they are the actual owner of the property; requiring the person to prove the element of each claim by clear and convincing evidence (current standard is preponderance of evidence); and finally, by authorizing the court to determine, based upon the facts and circumstances of the case, whether to award the nonprevailing original landowner an amount representing the fair market value of the property, as well as an amount representing any property taxes or other assessments levied on the subject property.
In order to protect the innocent, the names of several spectacular Real Estate Attorneys who drafted amendments to the bill are being withheld. Under mild protest, these unnamed persons spent countless hours preparing important and necessary amendments to the bill to ensure the bill was drafted in the best manner possible. Those efforts, while not reflecting the desires of the real estate section (which really did not want to change adverse possession), improved a bill which will most certainly make it to Governor Ritter’s desk for signature. The CBA, the Real Estate Section, and this author owe a debt of gratitude to a small group of dedicated volunteers for their time and expertise on behalf of the Bar.
To top things off, the bill was scheduled on the House Judiciary calendar for Wednesday, February 6 at 1:30 p.m. Due to a very crowded calendar, the bill wasn’t actually heard until about 8:00 p.m. that evening. After CBA’s amendments were adopted, the bill passed on a vote of nine to zero. The bill now heads to the House for 2nd Reading and it goes there a better bill because of the CBA and a group of talented lawyers.
20 BILLS OF INTEREST (and status):
In the House
1. HB 1174 - Concerning the Enactment of the "Uniform Interstate Depositions and Discovery Act". By Rep. McGihon and Sen. Gordon. Colorado Commission on Uniform State Laws. Enacts the "Uniform Interstate Depositions and Discovery Act".
Allows a party to submit a subpoena from another state for the deposition of a witness or for the discovery or inspection of documents or other tangible things to the clerk of the court in the county in which the deposition or discovery is to occur. Requires the Colorado court to issue a subpoena that incorporates the terms of the subpoena of the other state.
Provides that service of a subpoena, motion for protective orders, or enforcement actions are governed under the laws and rules of this state. Makes conforming amendments. Assigned to the Judiciary Committee.
2. HB 1176 - Concerning the modification of the allocation of parental responsibilities of certain deployed service members. By Rep. Labuda. CBA Legislative Policy Committee has voted to support this bill. 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, and that the allocation of parental responsibilities and parenting time reverts back to the orders that existed at the time of the service member parent's active duty deployment when the service member returns to Colorado. Assigned to the Judiciary Committee.
3 HB 1182 - Concerning the withdrawal by the state of its consent to the acquisition of lands within the state by the United States Government. By Rep. McKinley. Repeals statutory provisions pursuant to which the state of Colorado has given consent to the United States government for the acquisition by the United States government of land within the state. Makes a conforming amendment. Assigned to the State, Veterans, and Military Affairs Committee.
4. HB 1183 - Concerning modifications to the program that allows performance-based incentives for new job creation. By Rep. Hodge. Modifies the performance-based incentive for the new job creation program as follows:
- On and after July 1, 2007, requires an employer in a rural area to create at least 5 new jobs in 6 months rather than in one month to qualify to receive the incentive.
- On and after July 1, 2007, requires an employer in an urban area to create at least 10 new jobs in 6 months rather than in one month to qualify to receive the incentive.
- Eliminates the Colorado economic development commission's (commission) duty to establish certain deadlines in connection with the administration of the incentive program.
- Directs the commission to issue incentives to applicants at the commission's discretion, rather than in the order in which the commission received the applications, until the amount appropriated has been expended.
Assigned to the Business Affairs and Labor Committee.
5. HB 1189 - Concerning a prohibition of strikes against employers whose employees are in the state personnel system. By Rep. Riesberg and Sen. Gibbs. Prohibits any employee in the state personnel system or any labor organization, through formal action or through its agents, from inciting, encouraging, aiding, or participating in a strike, stoppage of work, slowdown, or interruption of operations by employees in the state personnel system. Passed out of the House on January 30; assigned to the Senate State, Veterans and Military Affairs Committee.
6. HB 1193 - Concerning prohibiting a judge from presiding over a case in which a judge of the same court is a party. By Rep. Levy. Prohibits a judge of a district court from presiding over a case in which a judge or former judge of the same district court is a party. Requires the chief justice of the Colorado Supreme Court to appoint a presiding judge in such cases.
Prohibits a judge of a county court from presiding over a case in which a judge or former judge of the same county court is a party. Requires the chief justice of the Colorado Supreme Court to appoint a presiding judge in such cases. Assigned to the Judiciary Committee.
7. HB 1194 - Concerning measures by executive branch agencies to reduce the incidents of drunk driving, and, in connection therewith, extending the length of suspension of driving privileges for certain offenders, requiring certain offenders to use an ignition interlock device, increasing the cost to reinstate a driver's license, and providing for high-visibility drunk driving law enforcement episodes. By Rep. Judd and Sen. Veiga. Extends the length of time that a person's driver's license is revoked or suspended due to certain alcohol- or drug-related offenses. Authorizes a person whose driver's license has been revoked for a first-time alcohol-related offense:
- To seek a restricted license requiring the use of an ignition interlock device after the person's license has been revoked for a specified period; and
- To be eligible for an unrestricted license if no possible violations are identified for a specified period.
Increases the reinstatement fee following a revocation or suspension due to an alcohol- or drug-related offense. Specifies that a portion of the increased fee be transferred to the first time drunk driving offender account in the highway users tax fund to be used to pay for an ignition interlock device for a person who cannot afford the device.
Requires the department of transportation to include as a priority within the strategic transportation project investment program increased episodes of high-visibility drunk driving law enforcement. Specifies that the episodes shall be independent of the drunk driving prevention and law enforcement program. Assigned to the Transportation and Energy Committee.
8. HB 1195 - Concerning the return of a release of a deed of trust after recording. By V. Mitchell and Sen. Taylor. Specifies that the public trustee shall be provided with a current address of the original grantor, assignee, or current owner when a request is made to release a deed of trust.
Specifies that, after recording the release of a deed of trust, the county clerk and recorder shall return the release to the original grantor, assignee, or current owner using the address provided to the public trustee. Specifies that, if the release is returned to the county clerk and recorder as undeliverable or unable to forward, the county clerk and recorder shall retain the release according to office policy. Clarifies that, if an original grantor, assignee, or current owner seeks a copy or a certified copy of the release after recording, the original grantor, assignee, or current owner shall be subject to appropriate copy fees. Passed the House on February 6; assigned to the Senate Local Government Committee.
9. HB 1198 - Concerning the circumstances under which a law enforcement officer is not required to file a report of a traffic accident. By Rep. Liston. Specifies the circumstances under which a law enforcement officer is and is not required to investigate and report on a traffic accident. Assigned to the Transportation and Energy Committee.
10. HB 1202 - Concerning the Enactment of the "Uniform Foreign-Country Money Judgments Recognition Act". By Rep. McGihon and Sen. Shaffer. Colorado Commission on Uniform State Laws. Replaces the 1977-enacted "Uniform Foreign Money-judgments Recognition Act" with the 2005-enacted "Uniform Foreign-country Money Judgments Recognition Act" ("act").
Updates and clarifies definitions. Reorganizes the act, and clarifies provisions relating to the scope of the act. Allocates the burden of proof with respect to establishing application of the act. Provides procedures for seeking recognition under the act. Clarifies and, to a limited extent, expands the grounds for non-recognition of foreign-country money judgments. Allocates the burden of proof with respect to the grounds for denying recognition. Establishes a 15-year statute of limitations for recognition of foreign-country money judgment. Specifies the effective date and applicability of the act. Assigned to the Judiciary Committee.
In the Senate
11. SB 120 - Concerning authorization of the use of a paycard by an employer to pay wages to an employee. By Sen. Penry and Rep. Rice. Authorizes an employer to deposit wages on a paycard so long as the employee receiving the paycard is provided free means of access to the entire amount of net pay at least once per pay period. Allows the employee to choose to receive payment of wages by other authorized means. Assigned to the Business Labor and Technology Committee.
12. SB 122 - Concerning the prohibition of action against an employee for sharing wage information. By Sen. Windels and Rep. T. Carroll. Makes it a discriminatory or unfair labor practice for an employer to discharge, discipline, discriminate against, coerce, intimidate, threaten, or interfere with an employee because the employee inquired about, disclosed, compared, or otherwise discussed wages; to require as a condition of employment nondisclosure by an employee of his or her wages; or to require an employee to sign a waiver denying the employee the right to discuss wages. Assigned to the Business Labor and Technology Committee.
13. SB 125 - Concerning regulation of sexually explicit representations that are harmful to minors. By Sen. Harvey and Rep. Stephens. Recognizes the state's interest in protecting children from access to certain sexually explicit materials, and specifies that the general assembly's intent is to prohibit access to these materials by children without unconstitutionally inhibiting access by adults. Specifically allows municipalities to adopt ordinances concerning sexually explicit materials or performances that are harmful to minors.
Specifies criteria for determining whether material or a performance is harmful to minors. Makes it a class 2 misdemeanor to disseminate to a minor any material that is harmful to minors or to allow a minor to view any performance that is harmful to minors. Specifies affirmative defenses. Specifies the severability of provisions in the act. Assigned to the Judiciary Committee.
14. SB 128 - Concerning the elimination of the statutory limit on the total amount of sales or use tax that may be levied by certain governmental entities. By Sen. Isgar. Eliminates the 6.9% limitation on the total amount of sales or use tax that may be levied by the state, any county, and any city or county. Assigned to the Local Government Committee.
15. SB 131 – Concerning an increase in the funding to the supplemental old age pension health and medical care fund from the receipts collected from the state sales and use tax. By Sen. Morse and Rep. Buescher. Eliminates the 6.9% limitation on the total amount of sales or use tax that may be levied by the state, any county, and any city or county. Assigned to the Health and Human Services Committee.
16. SB 134 - Concerning the creation of a county jail assistance fund capitalized by certain forfeited bonds paid according to a newly created bond schedule. By Sen. Kopp and Rep. McNulty. Provides that a law enforcement officer may consider an immigration and customs enforcement hold on a defendant as evidence that the defendant is in the country illegally.
Directs that 50% of the forfeited bond moneys and fees for a person in this country illegally shall be deposited into the capital construction fund for appropriation to the corrections expansion reserve fund. Directs that 50% of the forfeited bond moneys and fees for a person in this country illegally shall be deposited into the county jail assistance fund. Creates the county jail assistance fund.
Sets the minimum amount for bail for a person arrested for distribution of a schedule I or schedule II controlled substance at a specified amount. Permits the amount to be adjusted for inflation every 10 years. Assigned to the Judiciary Committee.
17. SB 139 - Concerning notification to employers of the federal electronic verification program for use in verifying the work eligibility status of new employees. By Sen. Schultheis and Rep. Lundberg. Requires the department of labor and employment to notify employers, quarterly for the next 2 years and twice per year thereafter, of the prohibition against hiring or continuing to employ an unauthorized alien and the availability of and participation requirements for the federal electronic verification program (e-verify program) to verify the work eligibility status of new employees. Also requires the department and the secretary of state to post on their respective web sites information about the prohibition against hiring unauthorized aliens and the e-verify program and a link to the e-verify program web site. Assigned to the Business Labor and Technology Committee.
18. SB 140 - Concerning toxicology tests following serious traffic accidents. By Sen. Shaffer and Rep. Fischer. Requires a law enforcement officer to request and direct that a person involved in a traffic accident that results in the death or serious bodily injury of another person take a test or tests to determine the alcoholic or drug content of the person's breath, blood, saliva, or urine.
Provides that, at a trial for a criminal offense, the results of the test or tests are admissible only if the court finds probable cause, independent of the test results, to believe that the person was driving a motor vehicle while under the influence of alcohol or drugs. Assigned to the Judiciary Committee.
19. SB 148 - Concerning the modification of definitions for the statewide managed care system under the "Colorado Medical Assistance Act". By Sen. Penry. Defines a "managed care entity" for the statewide managed care system under the "Colorado Medical Assistance Act" to mean an entity that contracts to provide services in a managed care system, including managed care organizations, prepaid inpatient health plans, and prepaid ambulatory health plans, but excluding primary care case managers. Defines other terms for the statewide managed care system under the "Colorado Medical Assistance Act". Assigned to the Health and Human Services Committee.
20. SB 149 - Concerning the sale of alcohol beverages in sealed containers at retail for consumption off the premises by persons licensed to sell at retail. By Sen. Shaffer and Rep. Pommer. On or after January 1, 2009, authorizes the issuance of a beer-and-wine-licensed grocery store license (grocery store license) to sell malt and vinous liquors in sealed containers for consumption off the premises to an establishment that generates revenues from the sale of food products. Limits the area of the grocery store that may be devoted to the sale of malt and vinous liquors and further requires a certain portion of that area to be used for the sale of craft beers and boutique wines.
Allows the appropriate licensing authority to deny a grocery store license when the authority determines that issuance of the license will cause an undue concentration of a similar class of licensed retail establishments and will require additional law enforcement resources.
Allows an exception to the prohibition against an owner of a licensed retail liquor store or liquor-licensed drugstore having an interest in certain other businesses licensed under the "Colorado Liquor Code" to allow such owner to have interests in:
- A total of 3 retail liquor licenses, 3 liquor-licensed drugstore licenses, or any combination thereof that totals 3 licenses; and
- Grocery store licenses.
Allows the owner of a beer-and-wine-licensed grocery store to have interests in:
- A total of 3 retail liquor licenses, 3 liquor-licensed drugstore licenses, or any combination thereof that totals 3 licenses;
- Additional grocery store licenses;
- Arts licenses;
- Airline public transportation system licenses; and
- Financial institutions that lend money to a person licensed under the "Colorado Liquor Code" or the "Colorado Beer Code".
Authorizes a person licensed as of January 1, 2009, to sell fermented malt beverages under the "Colorado Beer Code", or a person who has applied for a fermented malt beverage license as of January 1, 2009, to convert or transfer the fermented malt beverage license or application to a grocery store license or application. Allows the local licensing authority to consider the reasonable requirements of the neighborhood when determining whether to allow the conversion or transfer.
Sets the state and local license fees for a grocery store license. Prohibits a grocery store from:
- Selling malt and vinous liquors in sealed containers at retail without holding a grocery store license; and
- Having an open container of liquor on the licensed premises, except for the limited purpose of allowing the licensee to sample the product.
Assigned to the Judiciary Committee.
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