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e-Legislative Report

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In this issue:   Jan. 19, 2015

Happy Martin Luther King Jr. Day! 

Welcome to the 2015 edition of the Colorado Bar Association 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 the Legislative Policy Committee (“LPC”) 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 jschupbach@cobar.org

Legislature Returns to Work

Welcome Back! Colorado lawmakers returned to the Capitol on Wednesday, January 7th,  2015 to start the First Regular Session of the 70th General Assembly.  As prescribed by the Colorado Constitution, the legislative session will run for 120 days and conclude no later than May 7, 2015.

Keeping with custom and tradition, leadership in both the House and Senate gave opening day speeches showcasing their caucus’ legislative priorities for the session. Both parties stressed the importance of working together across party lines to get the work of the people and the state done. Links to the speeches for each of the speeches follows.

In addition, Governor John Hickenlooper gave his annual State of the State address, providing his views on the economy, health and future of our State.

Senate President Bill Cadman
Senate Minority Leader Morgan Carroll
Speaker of the House Dickey Lee Hullinghorst
House Minority Leader Brian DelGrosso

 

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Expect the Unexpected

I know, I know that sounds somewhat cliché, but this year, with politically split chambers, contentious issues, and a bumper crop of new legislators on both sides of the aisle, the cliché could prove more the reality.  Several controversial issues will color the Session with considerable vibrancy and significant debate: TABOR reform, “Death With Dignity,” oil & gas regulation, education funding, construction defects, affordable housing and marijuana regulation."

TABOR Refunds will highlight the partisan divide at the capitol.  Republicans are on the record as favoring refunding excess tax revenue - an approximate $187 million dollars next year.  Democrats are considering several options to keep the revenue to spend on infrastructure or state spending priorities.  This may include a ballot measure in the coming election.

Construction Defects an issue which has recently come to the forefront will be another hot item, one that will be of interest to lawyers from many perspectives.  Construction statutes and the protections they afford for developers and owners alike are complex issues – and this topic, and the bills likely to result, will be a compelling story line throughout the session.

Death with Dignity based on the Oregon Statute will also be a hot topic this coming session.  This is not an issue that is easy to work with, and emotions and personal feelings often affect the tone and tenor of the debate.

Marijuana regulation will be back, and in addition to the annual questions around regulation, the legislature will also wrestle with the important question of if, and how, to refund the excess tax revenue that has been generated by this new industry.  The legal implications of being one of the first states in the nation to pioneer the marijuana industry is a challenge and opportunity for the CBA, and we are working closely with the Legislature, Courts and others as the laws, rules and regulations develop.

While these topics will consume much of the Capitol energy, the Colorado Bar Association is also involved with several bills which – while seemingly more mundane – will also have far reaching consequences.  Engagement with these other bills will give the CBA a unique opportunity to work with many new legislators who do not have a legal background.  The 2015 legislative class has 15 lawyers, the lowest number in recent years.

Among the bills the CBA is closely watching closely are 5 uniform law proposals.  The Uniform Common Interest Owners Act, Uniform Substitute Decision Making Documents, Uniform Voidable Transactions Act and the Uniform Amendments to Family Act.  UCIOA, Substitute Decision Making and Voidable Transactions are all controversial within the Bar.  Lawyers will be interested in how these bills progress and what changes are made to integrate and align them with existing statutes.  Uniform laws are an interesting challenge because they afford an opportunity to integrate some national ideas customized for Colorado.  This customization is, what many consider, makes our statues unique and useful to the constituencies they guide.

The 2015 Legislative session will be a political roller coaster as a split Legislature and contentious issues put pressure on a tight timeframe.  It’s likely that there will be drama from unexpected quarters, fights over funding and policy, and public perception of the legislature and partisan politics headed into the 2016 election year!

 

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CBA Legislative Policy Committee

For followers 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 from requests from the various sections and committees of the Bar Association.

At its October and December meetings, the LPC voted to approve two bills drafted (SB 15-049 the second has not been introduced yet) by the Real Estate Section as Bar sponsored legislation. These Bar sponsored and will be highlighted in detail below when introduced.  The LPC also approved two bills (HB 15-1010 and HB 15-1064) supported by the Trust & Estate Section, though these bills are in conjunction with the Bankers' Associations.

 

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Bills of Interest
House
HB 15-1010
CONCERNING A PRESUMPTION THAT A TRUSTEE HAS NOTIFIED A BENEFICIARY WHEN THE TRUSTEE HAS ADOPTED A BENEFICIARY NOTIFICATION PROCEDURE, AND, IN CONNECTION THEREWITH, CLARIFYING THAT A TRUSTEE MAY DELIVER INFORMATION TO BENEFICIARIES ELECTRONICALLY. (Rep. Kraft-Tharp and Sen. Jahn)

Current law requires a trustee to keep beneficiaries of a trust informed about the status of the trust. The bill creates a presumption that a beneficiary has received information or a statement of account when the trustee has procedures in place requiring the mailing or delivery of information or a statement of account to a beneficiary. The presumption applies to electronic notifications if the beneficiary has agreed to receive such electronic delivery or access and to a beneficiary's receipt of a final account or statement.

HB 15-1021
CONCERNING STATUTORILY ESTABLISHED TIME PERIODS THAT ARE MULTIPLES OF SEVEN DAYS (Rep. Willett and Sen. Merifield)

The bill changes time periods in certain court proceedings to 7-day periods or periods that are multiples of 7 days to avoid actions being due on weekends. Similar changes to 7-day periods or periods that are multiples of 7 days were made to the Colorado Revised Statutes in 2012, pursuant to Senate Bill 12-175; in 2013, pursuant to House Bill 13-1126; and in 2014, pursuant to House Bill 14-1347.

HB 15-1034
CONCERNING AN INCREASE IN THE NUMBER OF DISTRICT COURT JUDGES IN THE TWELFTH JUDICIAL DISTRICT (Rep. Vigil and Sen. Crowder).

Effective July 1, 2015, the bill increases the number of district court judges in the twelfth judicial district from 3 to 4.

HB 15-1064
CONCERNING ACCESS TO THE SAFE DEPOSIT BOX OF A DECEDENT, AND, IN CONNECTION THEREWITH, LIMITING THE OBLIGATIONS OF CUSTODIANS WHO ACCESS THE BOX
(Rep. Nordberg and Sen. Holbert).

The bill clarifies who has access to the safe deposit box of a decedent. A custodian of a safe deposit box is not deemed to have acquired knowledge, either actual or constructive, pertaining to the value of any of the contents of the box delivered to a person as a consequence of the custodian's examination and delivery of such contents.

HB 15-1071
CONCERNING CLARIFICATION THAT, FOLLOWING A MERGER OF ENTITIES, THE SURVIVING ENTITY IS ENTITLED TO CONTROL THE PREMERGER ATTORNEY-CLIENT PRIVILEGES OF A CONSTITUENT ENTITY (Rep. Keyser)

Existing law specifies that when entities merge, all of the privileges of each of the merging entities vest as a matter of law in the surviving entity. The bill clarifies that the attorney-client privilege is among the privileges that vest in the surviving entity.Senate

SB 15-016
CONCERNING MARRIAGES BY INDIVIDUALS WHO ARE PARTIES TO A CIVIL UNION, AND, IN CONNECTION THEREWITH, PROHIBITING MARRIAGES IN CIRCUMSTANCES IN WHICH ONE OF THE PARTIES IS ALREADY IN A CIVIL UNION WITH ANOTHER INDIVIDUAL, ADDRESSING THE LEGAL EFFECT OF PARTIES TO A CIVIL UNION MARRYING EACH OTHER, CLARIFYING THE DISSOLUTION PROCESS WHEN PARTIES TO A CIVIL UNION MARRY, AND AMENDING THE BIGAMY STATUTE TO INCLUDE PARTIES TO A CIVIL UNION. (Sen. Steadman)

The bill addresses issues that have arisen in Colorado regarding marriages by individuals who are in a civil union or who will enter into a civil union after recent court decisions have declared same-sex marriage bans, such as section 31 of article II of the state constitution, unconstitutional. The bill amends the statute on prohibited marriages to disallow a marriage entered into prior to the dissolution of an earlier civil union of one of the parties, except a currently valid civil union between the same 2 parties. The executive director of the department of public health and environment is directed to revise the marriage license application to include questions regarding prior civil unions. The bill states that the "Colorado Civil Union Act" (act) does not affect a marriage legally entered into in another jurisdiction between 2 individuals who are the same sex. The construction statute for the act is amended to clarify that it must not be construed to create a marriage, including a common law marriage, between the parties to a civil union. Two parties who have entered into a civil union may subsequently enter into a legally recognized marriage with each other by obtaining a marriage license from a county clerk and recorder in this state and by having the marriage solemnized and registered as a marriage with a county clerk and recorder. The bill states that the effect of marrying in that circumstance is to merge the civil union into a marriage by operation of law. A separate dissolution of a civil union is not required when a civil union is merged into a marriage by operation of law. If one or both of the parties to the marriage subsequently desire to dissolve the marriage, legally separate, or have the marriage declared invalid, one or both of the parties must file proceedings in accordance with the procedures specified in the "Uniform Dissolution of Marriage Act". Any dissolution, legal separation, or declaration of invalidity of the marriage must be in accordance with the "Uniform Dissolution of Marriage Act". If a civil union is merged into marriage by operation of law, any calculation of the duration of the marriage includes the time period during which the parties were in a civil union. The criminal statute on bigamy is amended, effective July 1, 2015, to include a person who, while married, marries, enters into a civil union, or cohabits in this state with another person and to include a person who, while still legally in a civil union, marries, enters into a civil union, or cohabits in this state with another person.
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SB 15-049
CONCERNING THE VESTING OF TITLE TO REAL ESTATE IN A GRANTEE THAT IS AN ENTITY THAT HAS NOT YET BEEN FORMED ONCE THE ENTITY HAS BEEN FORMED (Sen. Martinez Humenik and Rep. Keyser)

Current law specifies that when a grantee of a deed is a corporation whose incorporation papers have not yet been filed, title to the real estate vests in the corporation once the papers are filed. The bill expands this law to apply to all entities, specifying that title vests once the entity is formed.

SB 15-069
CONCERNING THE REPEAL OF THE "JOB PROTECTION AND CIVIL RIGHTS ENFORCEMENT ACT OF 2013". (Sen. Woods and Rep. Szabo)

In 2013, the general assembly enacted HB13-1136, the "Job Protection and Civil Rights Enforcement Act of 2013" (act), which established compensatory and punitive damage remedies, as well as front pay, for a person who proves that an employer engaged in a discriminatory or unfair employment practice under state law. These remedies were created in addition to equitable relief, such as back pay, reinstatement, or hiring, that was already available to employment discrimination victims. Additionally, the act: ! Expanded age discrimination claims under state law to persons 70 years of age or older; Authorized the use of moneys in the risk management fund to pay claims for compensatory damages against the state or its officials or employees; and Required the state civil rights commission to create a volunteer working group to assist in education and outreach efforts and provide the commission with information to post on its web site regarding educational resources available to employers to help them understand and comply with antidiscrimination laws. With the exception of the expansion of age-based discrimination claims to individuals who are 70 years of age or older, the bill repeals all components of the act and restores the equitable relief remedies that were available to employment discrimination victims making claims under state law prior to the passage of the act.

 

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