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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/
LPC Activity.
At the request of the Civil Rights Committee, the LPC voted to support SB 200 - Concerning the expansion of prohibitions against discrimination on Friday, March 14. As introduced, the bill allows for the appointment of persons to the Colorado Civil Rights Commission who have been or might be discriminated against because of sexual orientation. The bill prohibits discrimination on the basis of sexual orientation in a number of areas of law.
Unless specifically noted below, the Colorado Bar Association has not taken a position to either support or oppose the bills described.
At the Capitol – Week of May 10:
Monday. The House Business Affairs and Labor committee killed HB 1237 – Regulate 1031 Exchanges Qualified Intermediaries on Monday afternoon. But not before Rep. Joel Judd made a several valiant attempts to keep the bill alive. The bill would have regulated Qualified Intermediaries involved in 1031 Exchanges but in the end the bill was not acceptable to the group of Qualified Intermediaries in Colorado, the two statewide banking associations and numerous title companies. Rep. Judd worked on several different drafts of the bill but none were able to satisfy the effected groups. The bill was prompted after a sunrise review by the Department of Regulatory Agencies.
Also on Monday, the Senate Judiciary amended and passed SB 195 – Death Penalty for Sexual Assault on a Child Under the Age of 12. The amendment required a previous conviction for a similar crime of the perpetrator before a death sentence could be considered. The bill moves to the Appropriations Committee to consider the financial requirements on the state if the bill is passed.
Tuesday. The Senate Business Labor and Technology Committee approved HB 1266- Filing of Notices on Statutory Liens and sent the bill to the Senate floor. The bill will provide guidance for those filing liens with the Secretary of State’s Office. The bill is the product of a Secretary of State Task Force which included CBA Agricultural and Business Law representatives. Also on Tuesday, the Senate Finance Committee amended and passed HB 1195 – Return Release of Deed of Trust. The bill spells out new procedures in order for a public trustee to release a deed of trust. The Senate amendments make certain clarifications regarding an “assuming party.”
On Wednesday, March 12, the House Judiciary Committee took up SB 164 - Limitations of Liability. The bill Amends the definition of "direct noneconomic loss or injury" in actions brought under the "Health Care Availability Act" to exclude physical impairment or disfigurement. It also aligns limitations on damages for noneconomic loss or injury in a medical malpractice case with the limitations for noneconomic loss or injury in other civil cases for acts or omissions occurring on or after July 1, 2008. The committee heard several hours of testimony both pro and con; but in the end the committee did not take formal action on the bill. The bill will be put back on the Judiciary calendar in the near future – but not for additional testimony – only to consider amendments and final action.
Also on Wednesday, the House Judiciary Committee approved a “strike below” version of HB 1342 – Child Support Enforcement Procedures. A strike below simply means that the bill in its current form is most likely vastly different than the introduced version. The bill does not have any fiscal impact and now moves to 2nd Reading in the House.
The Senate Local Government Committee approved HB 1135 - HOAs Due Process Dispute Resolution. The bill promotes the use of ADR as a first choice to resolve disputes between homeowners and HOAs. The bill was amended with a definition of “impartial decision maker” as follows: a person or group of persons who have the authority to make a decision regarding the enforcement of the association's covenants, conditions, and restrictions, including its architectural requirements, and the other rules and regulations of the association and do not have any direct personal or financial interest in the outcome. A decision maker shall not be deemed to have a direct personal or financial interest in the outcome if the decision maker will not, as a result of the outcome, receive any greater benefit or detriment than will the general membership of the association. The bill moves to the full Senate for consideration on 2nd Reading.
Getting its own special section: “Changes in Common Law”
HB 1248 – Joint Tenancy. The bill that seeks to reinstate the four unities of title in Joint Tenancy was approved by the Business Labor and Technology Committee on Tuesday. The bill also contains a statutory recognition that joint tenancies can be held in unequal shares. As introduced, the bill only contained the four unities of title concept but negotiations between the sponsoring organization (Land Title Association of Colorado) and three CBA sections (Real Estate, Trusts & Estates and Elder Law) added the unequal joint tenancies language to the bill. The next stop for the bill will be the Senate floor for debate on 2nd Reading.
HB 1148 – Adverse Possession.
Hang in there dirt lawyers this one is almost finished. The bill that puts a 2008 spin on 500 year old Adverse Possession law was unanimously approved by the Senate Judiciary Committee on Wednesday afternoon. A select group of Real Estate Section representatives worked on amendments to the bill to try to make the proposed changes as palatable as possible. The bill has three main goals: adds the requirement of “good faith” on a person claiming fee simple title under adverse possession; returning the burden of proof to clear and convincing; and allowing a judge to award fair market value, taxes and fees to a party that has lost property through an adverse possession claim. The Judiciary Committee adopted two amendments; one to reorder the sections in the bill to make it flow better and the other, a clarification of the applicability clause of the bill.
Bills of interest (and status):
In the House
HB 1360 - Concerning authorizing fire arson investigators as peace officers. By Rep. Witwer and Sen. Kopp. Clarifies that a fire arson investigator authorized by a unit of local government is a peace officer while engaged in the performance of his or her duties. Assigned to the Judiciary Committee; hearing scheduled on Wednesday, March 19 at 1:30 p.m.
HB 1362 - Concerning the earned income tax credit, and making an appropriation in connection therewith. By Rep. Kefalas and Sen. Boyd. Allows the earned income tax credit against state income taxes in income tax years 2008 and 2009. Creates the earned income tax credit fund in the state treasury. Allocates a portion of revenues from the unemployment insurance surcharge tax that would otherwise go to the unemployment compensation fund to the earned income tax credit fund in the fiscal years beginning July 1, 2008, and July 1, 2009, unless:
· The moving average weekly wage declined by more than a specified percentage during the prior year; or
· The moving average amount of unemployment insurance benefits paid increased by more than a specified percentage during the prior year.
Disallows the earned income tax credit for any year in which the unemployment surcharge tax moneys are not allocated to the earned income tax credit fund.
For the fiscal year beginning July 1, 2009, directs the general assembly to appropriate temporary assistance for needy families (TANF) block grant moneys in an amount equal to a specified percentage of the estimated total amount of the earned income tax credit that will be claimed by taxpayers for payment of refunds to those taxpayers.
At the end of each of the 2 fiscal years in which revenues from the unemployment insurance surcharge tax are transferred to the earned income tax credit fund, directs the state treasurer to transfer from the earned income tax credit fund to the general fund the total amount of the state earned income tax credit claimed by taxpayers for the prior year, minus the amount of refunds paid with moneys from the TANF block grant.
Appropriates a specified amount of TANF block grant moneys to the reserve for payment of refunds to taxpayers who claim the state earned income tax credit. Assigned to the Finance and Appropriations Committees.
In the Senate
SB 202 - Concerning oil and gas operations, and, in connection therewith, preserving the Colorado Oil and Gas Conservation Commission's authority to regulate oil and gas operations and limiting metropolitan districts' power to finance the payment of incremental directional drilling costs to oil and gas wells drilled in the greater Wattenberg area. By Sen. Shaffer and Rep. May. Specifies that nothing in the notification of surface development statute limits the Colorado oil and gas conservation commission's authority to regulate oil and gas operations, including drilling windows. Limits metropolitan districts' power to finance the payment of incremental directional drilling costs to oil and gas wells drilled within the greater Wattenberg area. Assigned to the Agriculture, Natural Resources & Energy Committee; hearing scheduled on Wednesday, March 19, upon adjournment.
SB 203 - Concerning repeal of the blue ribbon commission for health care reform. By Sen. Shaffer and Rep. McGihon. Repeals the blue ribbon commission for health care reform, created in Senate Bill 06-208, on July 1, 2008. Specifies that any moneys remaining in the health care reform cash fund on June 30, 2008, shall be transferred to the general fund, and abolishes the cash fund effective July 1, 2008. Assigned to the Health and Human Services Committee.
SB 204 - Concerning an exception to the requirement that decisions be issued on every claim submitted for unemployment benefits. By Sen. Veiga and Rep. T. Carroll. Creates an exception to the requirement that deputies of the division of employment and training in the department of labor and employment issue decisions on all claims for unemployment benefits to excuse decisions when the claimant has not filed a continued claim for benefits. Assigned to the Business Labor and Technology Committee; hearing scheduled on Monday, March 17 at 1:30 p.m.
SB 205 - Concerning judicial remedies when a law enforcement agency fails to preserve evidence that is subject to a judicial order. By Sen. Gordon and Rep. King. Requires the court to grant a new trial when material evidence subject to a preservation order or an order for release and testing is lost or destroyed. Assigned to the Judiciary Committee; hearing scheduled on Wednesday, March 19 at 1:30 p.m.
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