Legislative Matters
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FEATUREFEATURE | | TITLE LEGISLATIVE MATTERS 38 | COLORADO LAWYER | AUGUST/SEPTEMBER 2018 2018 Legislative Session Review BY JEREMY SCHUPBACH This article reviews the 2018 legislative session, focusing on bills of interest to the CBA. he 2018 legislative session was another tors than the historical average. This presents The 2018 Session in Brief busy, involved, exciting, and exhaust- both an opportunity and challenge as the CBA This year, 721 bills were introduced throughout ing session for the CBA. Headed into works with legislators on complicated measures the session, and 421 have been passed and the 2018 elections, this session was and technical concerns on matters of law and signed into law. An additional two bills were Tmarked by big issues, the first expulsion of a seeks to educate the legislature about who we allowed to become law without the governor’s member since 1915, and political positioning for are and what we do. This situation is not likely signature (HB 18-1086 and HB 18-1093), and the upcoming mid-term elections. The CBA both to change much as a result of the November Governor Hickenlooper vetoed nine bills, his advanced several bills to improve the practice election, though there may be a slight increase in personal record (HB 18-1011, HB 18-1083, HB of law and helped kill several dangerous and the number of lawyer legislators. In 2018, there 18-1181, HB 18-1258, HB 18-1263, HB 18-1427, misguided attempts to harm various practice were 13 lawyers, according to the Legislative SB 18-156, SB 18-179, and SB 18-223). All bills areas and the judicial branch. In short, it was a Drafting Office. considered during the session are available crazy, contentious, and yet successful session It is important to note that the CBA develops on the Colorado General Assembly’s website, for the CBA and its members. public policy and takes positions on legislation http://leg.colorado.gov/bills. As was the case in 2017, the House and through its Legislative Policy Committee (LPC), a Senate again split political control during this committee of 13 members appointed by the CBA CBA Legislative Action Summary session. The Democrats controlled the House president and representatives of the sections. The CBA tracked and worked on 41 bills in of Representatives over the Republicans by These 13 members—assisted by point people the 2018 session. The Appendix to this article 36 to 29 seats. By contrast, the Senate was in and leadership from each section—consider lists each bill by number, title, CBA position Republican hands, 18 (R) to 16 (D), with one the merits of bills and decide whether the CBA on the bill, and outcome. The CBA opposed unaffiliated senator. should adopt a position, and, if so, what that 13 bills, supported 16 bills, monitored with no This session again had fewer lawyer legisla- position will be. position two bills, and sought amendments AUGUST/SEPTEMBER 2018 | COLORADO LAWYER | 39 FEATURE | LEGISLATIVETITLE MATTERS to 10 bills—though we amended or changed that were a priority for our sections. In addition, ■ the collateral consequences of a crime some bills we supported as well. We achieved we worked with several other stakeholder groups with a sentencing range of one year or our intended outcome on 34 bills, for an overall and leadership from both parties to promote greater; success rate of over 80%—an outstanding overall and achieve our legislative agenda. ■ the fiscal impact of misdemeanor sen- achievement for our LPC at the Capitol. tences on state and local authorities; and SB 18-180: The Colorado Uniform Trust Code ■ the appropriate penalty level for offenses Major Legislation and Hot-Topic Bills Under current law, the administration of trusts that are deemed misdemeanors. The 2018 session was framed by several issues: is generally governed by certain provisions of This bill failed to pass the legislature this marijuana, consumer data privacy, transporta- the probate code. SB 18-180 repeals many of session. tion, Public Employees’ Retirement Association these provisions and creates a new Colorado (PERA) funding, the opioid epidemic, and block Uniform Trust Code outside the probate code HB 18-1385: Changes to Support chain financing. For the most part, the CBA to address trust administration. The new trust Obligations in Domestic Relation Actions monitored the issues and the bills, addressing code includes provisions concerning: Before the enactment of the 2017 Tax Cuts and them without taking a position or weighing in. ■ judicial proceedings; Jobs Act (the Act), spousal maintenance was Marijuana issues—a perennial topic at the ■ representation; capable of being classified as deductible by legislature—featured bills addressing public ■ creation, validity, modification, and the payor spouse and taxable to the recipient funding for the industry (HB 18-1011), use for termination of trusts; spouse for federal income tax purposes. As a treating children with autism (HB 18-1263), ■ duties and powers of trustees; and result of the Act, commencing in 2019, spousal and tasting rooms (HB 18-1258). The governor ■ liabilities of trustees and rights of persons maintenance is not deductible by the payor vetoed all of these bills after they were passed dealing with trustees. spouse and is not taxable income to the recipient by the legislature. The bill also makes conforming amend- spouse. HB 18-1385 was necessary to conform With respect to transportation funding, ments. The effective date is January 1, 2019. the statutory guideline advisory amount of this year’s effort at a grand compromise was maintenance, and the definitions used for SB 1. This bill was a compromise proposal by SB 18-166: Changing the Maximum calculating gross income and adjusted gross Democratic and Republican leaders that passed Jail Sentence for Certain Crimes income for maintenance and child support by a 36 to 29 margin in the House with only two from One Year to 364 Days awards, to federal law. days left in the session. The bill would generate Under current law, the maximum jail sentence The bill adjusts downward the advisory $50 million annually in transportation spending for a class 2 misdemeanor, misdemeanors guideline calculation of the amount of main- and use money from SB 17-267 to borrow more without a fixed statutory penalty, and municipal tenance where the maintenance awarded is than $2 billion in bonds. ordinance violations is one year. As originally not deductible by the payor spouse and is not PERA funding (SB 200) was another big drafted, SB 18-166 changes the maximum jail taxable income to the recipient spouse. It also legislative topic affecting many people in the sentence to 364 days. The bill would help legal amends the definitions of “gross income” and state. A last-minute compromise in the wee U.S. immigrants in Colorado avoid deportation “adjusted gross income” to properly reflect the hours of the session allowed the bill to move for certain low-level crimes. tax implications of maintenance obligations, forward. Early indications are that this bill is a As amended by the Senate, the bill creates the and adjusts the definitions of “gross income” step forward to securing PERA for the future.1 legislative interim committee on misdemeanor and “adjusted gross income” in calculating child The legislature also undertook several bills sentencing, to meet during the 2018 interim. The support obligations to reflect the tax implications to begin to address the growing opioid epidemic committee consists of three senators and three of maintenance obligations. in Colorado. SB 18-022, HB 18-1003, HB 18- representatives. The Senate president appoints The effective date is August 8, 2018. 1136, and SB 18-040 were all aimed at different two senators and designates the chair of the aspects, from funding to education, treatment, committee, and the Senate minority leader SB 18-109: Authorization for Notaries and prevention measures. This is an area we appoints one senator. The Speaker of the House Public to Perform Notarial Acts expect the legislature to continue to focus on of Representatives appoints two representatives Using Audio-Video Communication in coming sessions. and designates the vice chair of the committee, Current law requires an individual who wishes to and the House minority leader appoints one have a document notarized to appear personally CBA Priority Bills representative. The interim committee may before the notary public. SB 18-109 authorizes The legislature passed all but one of the bills meet up to five times during the interim and notaries public to perform a notarial act on created or promoted by CBA sections this year. may propose up to five exempt committee bills. behalf of an individual who is not in the notary’s We worked with a very supportive legislature, The bill directs the interim committee to, physical presence, but only with respect to an including several new legislators, to achieve bills at a minimum, study: electronic document. 40 | COLORADO LAWYER | AUGUST/SEPTEMBER 2018 To perform a “remote notarization,” a notary are expanded to specify who must be notified must allow the person a reasonable opportunity must use a tamper-evident electronic system that following such unauthorized acquisition and to obtain evidence of his or her authority to be conforms to standards established by the Sec- what must be included in such notification. on the premises. retary of State’s rules, including using real-time The effective date is September 1, 2018. A declarant: audio-video communications and keeping an ■ agrees to indemnify a peace officer and audio-video recording of the notarization for at HB 18-1261: The Colorado his or her agency for acts and omissions least 10 years. The bill establishes standards that Arbitration Fairness Act made in reliance upon the declaration; and a notary must comply with to have satisfactory HB 18-1261 applies to certain consumer and ■ is liable for actual damages, attorney fees, evidence of the identity of the person seeking employment arbitrations and and costs for any false statements made the remote notarization.