J_CCU_2019A 12/09/2019 09:07:00 AM Committee Summary

Darla Daniel, Co-legislative Liaison for CBA Trust and Estates Section, spoke for herself as a member of the Colorado Bar Association (CBA) working group on these bills. The group has completed parts one through five of the Uniform Fiduciary Income and Principal Act and will be working on parts six through eight in early 2020. The review will not be completed in time for the act to be included in the 2020 legislative agenda but should be ready for the 2021 legislative agenda. The group anticipates also completing its review of the Uniform Trust Act, part 5 in time for the 2021 legislative agenda. They will need to clear a few more hurdles with some other sections of the CBA but do anticipate the final product to be regarded as uniform. The commission thanked the group for their careful consideration and work on both of these acts.

Commissioner Gardner moved to table consideration of both the Uniform Fiduciary Income and Principal Act and the Uniform Trust Act, part 5 for this year and to consider them for the 2021 legislative session. Commissioner Tipper seconded and the motion passed without objection.

Terri Harrington, of the Colorado Collaborative Divorce Professionals, was selected by the organization to work with the commission on the draft of this act and generated a redline version of the uniform act that seems to address most of the concerns that have been raised regarding the act. The redline version applies only to family law collaborative law practice, as collaborative law practice in Colorado is already limited to family law. Ms. Harrington indicated that the CBA Alternative Dispute Resolution section has decided not to take a position on the act. The commission expressed concerns regarding the deletion of the disqualification provisions and section 10 regarding reduced fee arrangements in the redline version and wondered if there might be equal protection issues for low-income cases. Ms. Harrington indicated that section 10 regarding low-income cases could be put back in if desired. The commission also asked questions regarding the collaborative law process and how often the process ends and reverts to court. The process utilizes very specific contracts and clients are informed about the process and that collaborative practitioners are required to withdraw should the decision be to end the collaborative process and proceed in court. The commission requested that section 10 remain in the act for drafting purposes while stakeholders are consulted. The commission asked about the possibility of standardizing the forms and contracts used within the process and thanked Ms. Harrington for her work on the act.

Bonnie Schriner, family law attorney and collaborative law practitioner, speaking for herself, shared that people seek out collaborative law as a method to settle issues without litigation. The process works well and the uniform act fits very well with the current process and sets out what is required in collaborative law and contract perimeters. Collaborative law was intended to be used for all cases, but in Colorado collaborative law is only used in family law cases and, in Colorado, that is where the uniform act should be applied. The commission thanked Ms. Shriner for her testimony.

Commissioner Scott moved to draft the redline version of the Uniform Collaborative Law Act, with section 10 reinserted, as a commission bill for introduction during the 2020 legislative session. Commissioner Mielke seconded and the motion passed without objection. Commissioner Scott agreed to act as commission contact on the bill. Commissioners Tipper and Gardner agreed to sponsor the bill.

Jean Arnold, Vice Chair of CBA Real Estate Section, spoke for herself and as a member of a recently formed CBA task force on the act. The CBA does not yet have a position on this act. Ms. Arnold pointed out that the partition remedy can come through several different portals – such as family law, trusts & estates, business divorce, or natural resources. The Real Estate Section is taking the lead on looking at this act, but as the act will apply to more than property and real estate law, other sections will need to be consulted before it can go to the CBA legislative policy committee for consideration. Commissioners questioned whether the act was written to apply just to the probate process and Ms. Arnold answered that the definition of heirs' property in the act is very broad and could apply to other areas of law. In addition, the act doesn't take into account some of the issues in partition hearings that are currently addressed through Colorado statute and case law. She stated that the task force is intrigued with the remedy this act offers, it's just a matter of squaring it with current law. Also, in Colorado, mineral and water rights applications under the act will need to be considered carefully. The commission asked about the volume of heirs' partition cases in Colorado and encouraged the task force to keep any changes to the uniform act minimal. Ms. Arnold stated that the task force needs to reach out to more of the rural areas to get a better idea of the volume of partition cases in Colorado and that although some tweaks are anticipated, it's too early for the task force to know if more substantial changes might be needed. The commission thanked the CBA for its time on this act.

Commissioner Tipper moved to table consideration of Uniform Partition of Heirs Property Act for this year and to consider it for the 2021 legislative session. Commissioner Whitfield seconded and the motion passed without objection.

Marie Avery Moses, Co-chair of the CBA Family Law Legislative Section, provided, as requested by the commission, a detailed memo regarding the section's thoughts regarding the act. The CBA does not yet have a formal position on the act but the family law section continues to oppose it. The memo is organized according to the stated goals of the act and how it applies to Colorado laws, goals, and policies in these areas; i.e. is the goal already adequately covered by Colorado law or is the goal a problematic area for Colorado? The section strongly dislikes the concept of a parentage registry because of the way it is written. It would like to see section 7 from the 2017 UPA in Colorado law and sees benefit  in incorporating sections 801 through 812 regarding surrogacy into law. Colorado statutes are broader concerning gender, but the terminology used could be updated. Colorado law holds all presumptive parents equal under the law, but the UPA creates different categories of parents and different rules apply to the different categories. The commission will take the memo under consideration.

Ellen Trachman and Judith Hoechst, assistive reproductive attorneys and on the board of Colorado Fertility Advocates, cannot speak to the entire UPA but can speak to section 7 and section 8 of the uniform act regarding assistive reproductive technology and surrogacy. Colorado's statutes are inadequate to deal with this flourishing technology. Colorado has some of the best doctors practicing in this area of medicine and people come here from all over the world for reproductive assistance. Colorado has section 19-4-106, C.R.S., which refers only to donors and contains out-of-date terminology and definitions. Additional judicial action is required regarding pre-birth orders in order to protect parental rights. Section 8 of UPA allows for additional protections for parental rights regarding gestational surrogacy. Parental rights under the UPA regarding traditional/genetic surrogacy is problematic as it allows a 72-hour period of time in which the surrogate can decide to keep the child. The commission noted that there are several groups interested in moving forward with portions of this act and discussed whether a bill should be drafted in order to focus the various groups on what portions can be adopted in Colorado. The commission noted that it is important to have up-to-date and gender-neutral language in the statutes for clarity purposes and discussed how the act applies the best interest of the child. Ms. Hoechst suggested that the ABA model act might be a helpful reference regarding the use of gender-neutral language.

Commissioner Tipper moved to draft the 2017 Uniform Parentage Act as a commission bill for introduction during the 2020 legislative session. Commissioner Levy seconded and the motion passed without objection. Commissioners Tipper and Scott agreed to act as commission contacts on the bill. Commissioner Tipper agreed to sponsor the bill.

Darla Daniel, Co-legislative Liaison for CBA Trust and Estates Section, speaking as an individual member of the subcommittee working on the UPC amendments and not on behalf of the section as a whole. The group is on board for removing outdated language and updating terminology to be gender-neutral and have approved three of the 28 proposed changes. Colorado adopted the 2008 UPC amendments regarding artificial reproductive technology, but the subcommittee is looking at what tweaks may be required to incorporate the 2019 amendments in this area. The subcommittee will not be ready to proceed for the 2020 session. The commission asked if the subcommittee would be ready in time for the 2021 session. Ms. Daniel indicated that the terminology update changes could be ready for 2021 but some decisions might be contingent on decisions made regarding the 2017 Uniform Parentage Act. The commission thanked the CBA for its time on this act.

Commissioner Scott moved to table consideration of the Amendments to the Uniform Probate Code for this year and to consider it for the 2021 legislative session. Commissioner Tipper seconded and the motion passed without objection.

There was no public testimony on this agenda item. Commissioner Mielke shared the final Uniform Law Commission (ULC) draft with comments and other ULC materials with the commission and explained that the uniform act deals only with non-commercial automated vehicles, i.e., ownership, registration, and who is the driver, similar to what is required in current motor vehicle law. The uniform act was drafted to fit into current motor vehicle statutes, which will need to be updated anyway, to define the new players as they fit into current law regarding motor vehicles. The act also gives states some financial protection regarding new industry costs by providing that the expenses from any additional actions required to regulate the emerging industry is paid by the entity needing the action. The manufacturing, equipment, software, and other safety concerns about automated vehicles being on the road are all federal. The commission discussion included whether states would become responsible for verifying the road safety of aging automated vehicles and how the uniform act would work with existing law in Colorado. Existing automated vehicle law allows authorized automated vehicles on the roads and restricts state agencies and subdivisions from adopting policies or rules that sets standards that differ from the standards set from people-driven vehicles. The uniform act deals with the registering and insuring of automated vehicles, which are expected to become available and on the road starting in 2020. The commission observed, based on the floor discussions on Senate Bill 17-213, that the bill may be a heavy lift and that it would be helpful to try to address any legal concerns that may be raised in advance. The commission noted that the major concern from the 2017 bill was the impact of automated vehicles on commercial vehicles and labor and this act would go in the motor vehicle statutes regarding the ownership and registration of individual vehicle owners. It was observed that Colorado may already be behind the curve regarding this new industry and putting a bill on bill paper is the best way to bring out stakeholders and get the conversation started.

Commissioner Mielke moved to draft the Uniform Automated Operation of Vehicles Act as a commission bill for introduction during the 2020 legislative session. Commissioner Whitfield seconded and, after a roll call vote, the motion passed without objection. Commissioner Mielke will be the commission contact on the bill. The commission noted that a bill sponsor will need to be identified prior to the bill being introduced.

There was no public testimony on this agenda item. Commissioner Tipper reported that she followed up with the Governor's office regarding the Governor's veto of last year's commission bill and the only path forward with this act requires a sunrise review. The sunrise review application was filed in November, but the results of the review will not be presented until October 2020. Logistically the commission cannot move forward with the 2015 act and 2019 amendments this session. Commissioner Mielke expressed distress that Colorado universities, student athletes, and their families will not have the same protections as other states that have already adopted the 2015 act and 2019 amendments.

Commissioner Tipper moved to table consideration of the Revised Uniform Athlete Agents Act (2015) and 2019 Amendments for this year and to consider it for the 2021 legislative session. Commissioner Whitfield seconded and the motion passed with one objection.

Steve Mulligan, Legislative Liaison for the CBA Business Law Section, speaking for himself only. At the commission's request, the section did take a look at this act. In 1990, Colorado was the third state to pass a limited liability company act. The "Colorado Limited Liability Company Act" is located in article 80 of title 7, C.R.S. Colorado lawyers helped to draft the 1996 Uniform Limited Liability Company Act with language borrowed from Colorado's 1990 limited liability company act and to date, 22 states have adopted the uniform act. Colorado's act has been revised over the years, sometimes borrowing language from subsequent uniform acts. In addition, Colorado courts have generated considerable case law regarding this area of law and practitioners believe that Colorado's law and case law work well. Unfortunately, the uniform act does not reconcile well with Colorado law and there may be issues with trying to do so. There may be provisions in the revised act that may be beneficial for Colorado to incorporate and there is interest in forming a group to discuss possible amendments to Colorado law, but not necessarily to make Colorado law more uniform. The CBA does not support moving forward with the revised act at this time. The commission asked whether Colorado is at a disadvantage for not having a uniform act regarding business law. Mr. Mulligan responded that the way Colorado law is written and has developed has actually become an enticement for entities to come into Colorado to do business. Commission consensus was to take this act off the commission's agenda until there is interest in moving forward on it in the future.

Steve Mulligan, Legislative Liaison for the CBA Business Law Section, speaking for himself only. Colorado's Limited Partnership Act of 1981 is in article 62 of title 7, C.R.S., and has strong provisions that go beyond those in the uniform act. Colorado does not have many limited partnerships and there is not a need to adopt this revised act. Commission consensus was to take this act off the commission's agenda until there is interest in moving forward on it in the future.

There was no public testimony on this agenda item.  Commissioner Whitfield shared some of the feedback that he received on the draft. Everyone agrees that these records should be accurate; some have shared concerns about whether the timelines were appropriate for all types of records and when the date count in the timelines start. For example, a traffic stop summons is immediately filed but a criminal investigation can be ongoing and some information should not be immediately shared publicly. Interested parties would like additional information regarding the timeline for requested record corrections and the corresponding notification requirements. There is concern that there is not enough time provided for the checking and correction of records or for the extensive notification requirements. The Colorado Bureau of Investigations, the presumed central depository referred to in the bill, has not yet had a chance to review the act and offer feedback. There was interest in streamlining the mistaken identity registry provisions by using the central registry database to simply flag duplicate or overlapping names for additional verification instead of creating a separate database. The commission discussed some of the details regarding timeline concerns and the need for more stakeholder involvement to work out some of the issues presented. The commission would like the act to be agency-friendly and may be able to set up, if necessary, qualification and exceptions to reach that goal. It was decided that introducing this act would be the best way to further discussion among stakeholders and get a fiscal note. Funding possibilities discussed included passing the act without funding to be implemented when funding became available or to allow for agencies to use the act to apply for grants for implementing the act. There was also discussion whether the act should have a petition or safety clause and what the effective date or dates would be. The commission suggested that ULC be asked about the need for a separate registry for mistaken identity during the drafting process.

Commissioner Gardner moved to introduce LLS 20-0421: Uniform Criminal Records Accuracy as a commission bill, as drafted and subject to the sponsor having latitude to determine the necessary enacting and effective date clauses. Commissioner Whitfield seconded and the motion passed without objection. Commissioners Tipper and Whitfield will continue to work on the act. Commissioner Tipper agreed to sponsor the bill.

There was no public testimony on this agenda item. The commission does not believe that there is any controversy surrounding this bill and Commissioner Gardner noted that the United States-Mexico-Canada (USMCA) trade agreement has been tentatively approved. The commission discussed whether Colorado would need to develop a new registration system under the act, but concluded that there would be no need to. The commission also discussed whether the bill should have a safety clause or a petition clause and consensus was to use a petition clause.

Commissioner Gardner moved to introduce LLS 20-0422: Uniform Registration of Canadian Money Judgments as a commission bill, as drafted and with a standard petition clause. Commissioner Tipper seconded and the motion passed without objection. Commissioner Gardner agreed to sponsor the bill.

Other business. There was a brief discussion on commission appointments to new ULC drafting committees:

• Commissioner Tipper has been appointed to the Drafting Committee on Collection and Use of Personally Identifiable Data
• Commissioners Tipper, Levy, and Duran have been appointed to the Study Committee on Default Judgments in Debt Collection Cases
• Commissioner Mielke has been appointed to the Drafting Committee on the Common Interest Ownership Act and the Uniform Condominium Act
• Commissioner Levy has been appointed to the Drafting Committee on the Third Party Funding of Litigation

Next CCUSL meeting.

• There was discussion regarding whether another meeting prior to the end of session was necessary for bill approvals. The commission concluded that the bills requested in today's meeting  for drafting are considered approved for introduction providing sponsorship is obtained.
• The commission proceeded with the required annual election for Chair and Vice Chair. Commissioner Scott nominated Commissioner Levy to continue as Chair and Commissioner Gardner moved that nominations be closed. Both motions passed without objection. Commissioner Levy moved that Commissioner Gardner continue as Vice Chair and that nominations be closed. Both motions passed without objection.
• It was determined that the next commission meeting will be during the 2020 ULC annual meeting, held from July 10 to 16, in Madison, Wisconsin.