FEATUREFEATURE | | TITLE LEGISLATIVE MATTERS

38 | 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. A notary is prohibited ■■ establishes ethical standards for arbi- in the declaration. from using information collected during a trators; If the declaration includes a statement that remote notarization other than as allowed by ■■ specifies that any party may challenge in the property has been altered or damaged, or applicable federal or state law. court the impartiality of an arbitrator or if the peace officer sees evidence of alteration The bill appropriates $42,895 to the Depart- arbitration services provider; or damage, the peace officer must collect the ment of State for the implementation of the act. ■■ requires specified disclosures by arbitra- personal information of the persons removed This bill failed to pass the legislature this tors and arbitration services providers; and provide it to the declarant. A person removed session. ■■ authorizes injunctive relief against an from the property pursuant to the bill who alters arbitrator or arbitration services provider or damages the property is guilty of a class 1 Uniform Laws who engages in certain specified acts; and misdemeanor. The Uniform Law Commission was critical to ■■ specifies that a right conferred by the bill The effective date is July 1, 2018. The bill the success of the CBA’s effort to pass SB 180 may not be waived before a demand or applies to requests for removal and offenses (the Colorado Uniform Trust Code), discussed filing of a claim, and only afterward by a committed on or after that date. above. We have been working on this legislation signed waiver. for a number of years, and with our version of Conclusion the uniform bill adopted, Colorado is better HB 18-1262: The Arbitration This was my fourth session representing you at aligned with the majority of other states. Services Provider Transparency Act the Capitol. I consider it an honor to work with HB 18-1262 requires arbitration services provid- the Association and represent so many fine and Other Interesting Bills ers that administer consumer or employment thoughtful individuals. The CBA’s success is the The CBA worked on a number of other interesting arbitrations to collect, publish, and make avail- result of hard work by a great many people who pieces of legislation throughout the session. A able specified information on those arbitrations volunteer their time and expertise to advance brief synopsis of these bills, the CBA’s position administered in the previous five years. The bill and defend the practice of law and our agenda. on them, and the outcomes follows. amends a provision of the Uniform Arbitration It is a tremendous privilege to work with these Act to make the bill effective. CBA members, and I look forward to many HB 18-1128: Strengthening Protections While HB 18-1261 and HB 18-1262 did not more years of leadership and success under for Consumer Data Privacy pass this year, we expect that transparency the gold dome. Except for conduct in compliance with appli- and disclosure around and within arbitration cable federal, state, or local law, HB 18-1128 will be a major topic for the legislature and the requires covered and governmental entities CBA in coming years. These bills represent the Jeremy Schupbach is the CBA direc- tor of legislative relations and the in Colorado that maintain paper or electronic beginnings of a larger conversation. coordinating editor for Colorado documents containing personal identifying Lawyer’s Legislative Matters articles. information to develop and maintain a written SB 18-015: Protecting Homeowners Readers are encouraged to contact him any time they would like more information policy for the destruction and proper disposal and Deployed Military Personnel Act about bills or other legislative matters that may of those documents. Entities that maintain, SB 18-015 directs a peace officer to remove a relate to or affect the legal profession and the own, or license personal information, including person from a residential premises and order the practice of law—(303) 824-5309, jschupbach@ those that use a nonaffiliated third party as a person to remain off the premises if the owner cobar.org. service provider, must implement and maintain or owner’s authorized agent (declarant) swears reasonable security procedures for the personal to a declaration making specified statements information. The notification laws governing concerning ownership of the premises and the NOTE disclosure of unauthorized acquisitions of lack of authority for the person or persons who 1. https://denver.cbslocal.com/2018/06/22/ unencrypted and encrypted computerized data are on the premises to be there. The peace officer pera-colorado-pension-reforms.

AUGUST/SEPTEMBER 2018 | COLORADO LAWYER | 41 FEATURE | LEGISLATIVETITLE MATTERS

2018 COLORADO LEGISLATIVE SESSION: BILLS TRACKED BY THE CBA

BILL NUMBER SPONSOR(S) NAME POSITION

Cheri Jahn, Tim Neville, Daniel Pabon, HB 1011 Marijuana Business Allow Publicly Traded Owners Amend HB 1050 , Jonathan Singer Competency to Proceed Juvenile Justice System Support

HB 1059 James Wilson Require 911 Call Oppose

HB 1089 , Rhonda Fields No Monetary Conditions of Bond for Misdemeanors Support

HB 1102 John Cooke, , Cole Wist Extend District Attorney Fellowships to 18 Months Support

Jessie Danielson, , HB 1104 Family Preservation for Parents with Disability Amend Jeff Bridges, Lois Court, Kent HB 1128 Protections for Consumer Data Privacy Oppose Lambert, Cole Wist Judicial Administrative and Budget Records Subject to HB 1152 John Cooke, Amend Colorado Open Records Act HB 1156 , Limit Penalties for Juvenile Truancy Support

Don Coram, Stephen Fenberg, Dafna HB 1177 Youth Suicide Prevention Monitor Michaelson Jenet

Don Coram, Lois Court, , HB 1182 Statewide System for Advance Directives Oppose Lois Landgraf

HB 1220 Jovan Melton, Jack Tate Bitcoin Dealers Licensed as Money Transmitters Oppose

HB 1224 Robert Gardner, Yeulin Willett Licensee Discipline Mediation State Agency Support

HB 1254 James Smallwood, Kevin Van Winkle Public Trustee Deed of Trust Foreclosure Sales Amend

HB 1261 Daniel Kagan, Colorado Arbitration Fairness Act Oppose

Dominique Jackson, Daniel Kagan, HB 1262 Arbitration Services Provider Transparency Act Oppose Dylan Roberts

HB 1326 Kent Lambert, David Young Support for Transition from Institutional Settings Support John Kefalas, Lois Landgraf, Jonathan HB 1346 Abuse of Youth Under 21 in Care of Institution Support Singer, James Smallwood Robert Gardner, John Kefalas, Lois HB 1348 Child Welfare Information and Services Support Landgraf, Jonathan Singer

Janet Buckner, , Kerry HB 1378 Equal Pay for Equal Work Act Support Donovan, Rhonda Fields

42 | COLORADO LAWYER | AUGUST/SEPTEMBER 2018 BILL PROGRESS ACTION DATE LAST ACTION BILL URL

Dead/Failed/Vetoed 6/5/2018 Governor Vetoed billtrack50.com/BillDetail/917712

Signed 3/22/2018 Governor Signed billtrack50.com/BillDetail/917731 House Committee on Judiciary Dead/Failed/Vetoed 2/6/2018 billtrack50.com/BillDetail/917423 Postpone Indefinitely Senate Committee on State, Dead/Failed/Vetoed 4/16/2018 Veterans, and Military Affairs billtrack50.com/BillDetail/928504 Postpone Indefinitely Senate Committee on Finance Dead/Failed/Vetoed 5/7/2018 billtrack50.com/BillDetail/929497 Postpone Indefinitely

Signed 4/25/2018 Governor Signed billtrack50.com/BillDetail/929242

Signed 5/29/2018 Governor Signed billtrack50.com/BillDetail/930925

Passed 5/29/2018 Governor Signed billtrack50.com/BillDetail/941006

Passed 6/6/2018 Governor Signed billtrack50.com/BillDetail/943324

Senate Committee on State, Dead/Failed/Vetoed 5/1/2018 Veterans, and Military Affairs billtrack50.com/BillDetail/945190 Postpone Indefinitely House Committee on Health, Dead/Failed/Vetoed 3/29/2018 Insurance, and Environment billtrack50.com/BillDetail/945437 Postpone Indefinitely Senate Committee on Business, Dead/Failed/Vetoed 4/30/2018 Labor, and Technology Postpone billtrack50.com/BillDetail/946064 Indefinitely

Signed 5/29/2018 Governor Signed billtrack50.com/BillDetail/946057

Signed 4/23/2018 Governor Signed billtrack50.com/BillDetail/960242

Senate Committee on State, Dead/Failed/Vetoed 4/18/2018 Veterans, and Military Affairs billtrack50.com/BillDetail/961441 Postpone Indefinitely Senate Committee on State, Dead/Failed/Vetoed 4/18/2018 Veterans, and Military Affairs billtrack50.com/BillDetail/961295 Postpone Indefinitely

Signed 4/30/2018 Governor Signed billtrack50.com/BillDetail/973944

Signed 5/30/2018 Governor Signed billtrack50.com/BillDetail/975145

Passed 5/30/2018 Governor Signed billtrack50.com/BillDetail/975157

Senate Committee on State, Dead/Failed/Vetoed 5/4/2018 Veterans, and Military Affairs billtrack50.com/BillDetail/976902 Postpone Indefinitely

Continued on page 44

AUGUST/SEPTEMBER 2018 | COLORADO LAWYER | 43 FEATURE | LEGISLATIVETITLE MATTERS

BILL NUMBER SPONSOR(S) NAME POSITION

Strong HB 1385 Don Coram, Dylan Roberts Domestic Relations Changes Due to Federal Tax Law Support

Dominick Moreno, , HB 1390 Safe Family Option for Families in Crisis Amend Jonathan Singer, James Smallwood

Dominique Jackson, Dominick HB 1397 Landlord Tenant Warranty of Habitability Oppose Moreno

HB 1405 Robert Gardner, Pete Lee Providers of Legal Services Reporting Exception Amend

HB 1415 Stephen Fenberg, Regulate Student Education Loan Servicers Support

Jovan Melton, Tim Neville, Daniel HB 1426 Virtual Currency Exemption Money Transmitters Act Amend Pabon, Jack Tate Robert Gardner, , Larry SB 015 Protecting Homeowners and Deployed Military Amend Liston, David Williams SB 056 Cheri Jahn, Pete Lee, Yeulin Willett Civil Jurisdiction of County Courts and Filing Fees Amend

SB 060 Don Coram, Millie Hamner Protective Orders in Criminal Cases Support

Robert Gardner, , SB 109 Authorize Audio-Video Communication Notarial Acts Oppose Cole Wist

SB 115 Irene Aguilar, Apply Stark Laws to Medical Referrals Outside Medicaid Oppose

Adrienne Benavidez, , SB 119 False Imprisonment of a Minor Oppose Robert Gardner

Dominique Jackson, , SB 120 Time Period for Tenant to Cure Unpaid Rent Oppose Angela Williams, James Wilson

Tim Neville, Lori Saine, , SB 165 Requirements for Public Administrators and Deputies Support Faith Winter Strong SB 166 Don Coram, Change Maximum Criminal Penalty One Year to 364 Days Support

Robert Gardner, Matthew Gray, Cole Strong SB 180 Colorado Trust Code Wist Support

Local Government Liable Fracking Ban Oil and Gas SB 192 Perry Buck, Oppose Moratorium

Larry Crowder, Kimmi Lewis, Jerry SB 197 Agriculture Motor Vehicle Port of Entry Amend Sonnenberg

SB 212 Beth Martinez Humenik Increase Juror Compensation Support

SB 240 Robert Gardner, Cole Wist Revised Uniform Unclaimed Property Act Monitor

SB 241 Steve Humphrey, Kevin Lundberg Colorado Children First Act Oppose

44 | COLORADO LAWYER | AUGUST/SEPTEMBER 2018 BILL PROGRESS ACTION DATE LAST ACTION BILL URL

Signed 5/24/2018 Governor Signed billtrack50.com/BillDetail/977572

Senate Committee on State, Dead/Failed/Vetoed 5/7/2018 Veterans, and Military Affairs billtrack50.com/BillDetail/977578 Postpone Indefinitely Senate Committee on State, Dead/Failed/Vetoed 5/4/2018 Veterans, and Military Affairs billtrack50.com/BillDetail/978241 Postpone Indefinitely

Passed 6/6/2018 Governor Signed billtrack50.com/BillDetail/978942

Senate Committee on State, Dead/Failed/Vetoed 5/3/2018 Veterans, and Military Affairs billtrack50.com/BillDetail/979056 Postpone Indefinitely Senate Third Reading Lost - No Dead/Failed/Vetoed 5/9/2018 billtrack50.com/BillDetail/979762 Amendments

Passed 6/6/2018 Governor Signed billtrack50.com/BillDetail/917714

Passed 5/29/2018 Governor Signed billtrack50.com/BillDetail/918298

Signed 3/22/2018 Governor Signed billtrack50.com/BillDetail/918128

House Committee on Dead/Failed/Vetoed 5/10/2018 Appropriations Postpone billtrack50.com/BillDetail/938119 Indefinitely Senate Committee on State, Dead/Failed/Vetoed 2/14/2018 Veterans, and Military Affairs billtrack50.com/BillDetail/937886 Postpone Indefinitely

Passed 5/29/2018 Governor Signed billtrack50.com/BillDetail/937841

Senate Committee on Business, Dead/Failed/Vetoed 2/14/2018 Labor, and Technology Postpone billtrack50.com/BillDetail/938042 Indefinitely

Signed 4/2/2018 Governor Signed billtrack50.com/BillDetail/945956

House Considered Senate Dead/Failed/Vetoed 5/9/2018 billtrack50.com/BillDetail/945796 Adherence—Result was to Adhere

Signed 4/26/2018 Governor Signed billtrack50.com/BillDetail/959547

House Committee on State, Dead/Failed/Vetoed 4/18/2018 Veterans, & Military Affairs billtrack50.com/BillDetail/965480 Postpone Indefinitely House Committee on State, Dead/Failed/Vetoed 4/25/2018 Veterans, & Military Affairs billtrack50.com/BillDetail/965636 Postpone Indefinitely Senate Committee on Dead/Failed/Vetoed 5/7/2018 Appropriations Postpone billtrack50.com/BillDetail/971756 Indefinitely Senate Committee on Judiciary Dead/Failed/Vetoed 4/25/2018 billtrack50.com/BillDetail/977196 Postpone Indefinitely Senate Second Reading Lost—No Dead/Failed/Vetoed 5/1/2018 billtrack50.com/BillDetail/977515 Amendments

AUGUST/SEPTEMBER 2018 | COLORADO LAWYER | 45 ©2018 Colorado Bar Association. All rights reserved.