2017 Legislative Wrap-up

Utahns (especially Legislators and Lobbyists) breathed a collective sigh of relief with the close of the Utah General Legislative Session on March 9. In contrast with with the gridlock seen in Washington and several states, Utah lawmakers passed 535 bills and a $16+ Billion budget over a fast-paced 45 days. Here’s a recap of what happened, with a particular focus on issues of interest to the Bar.

Administration of the Courts

The Utah State Bar actively opposed H.B. 93, Judicial Nominating Process Amendments. This bill eliminated the Commission on Criminal and Juvenile Justice’s ability to establish evaluation criteria for judicial nominees. This bill passed the House but failed to receive a favorable recommendation in the Senate Judiciary & Law Enforcement Committee. Our thanks to the many attorneys who contacted their senators and representatives to express concerns about this bill.

The Bar supported the addition of a Fifth District Court Judge through H.B. 77. This position was funded by the Legislature and the application process has already opened.

With the support of the Bar, Sen. Weiler sponsored an amendment to Rep. Kwan’s H.B. 170, Small Claims Amendments. This amendment will increase the small claims court’s jurisdiction by $1,000, to $11,000 and aligns with one of the recommendations from the Futures Commission of the Utah State Bar.

The Legislature also re-established the Judicial Rules Review Committee, which had been dormant after several years. This Legislative body will perform a public review of existing and proposed court rules in a similar manner to the longstanding Administrative Rules Review Committee.

Immediately after the Session adjourned, Utah Supreme Court Chief Justice Matthew Durant announced that longtime Courts lobbyist Richard Schwermer was appointed the new Administrator of the Courts.  Richard has been with the Courts since 1990, and brings an important perspective to this position.

Access to Justice

The Bar Commissioners voted to endorse Rep. Angela Romero’s H.B. 200, Sexual Assault Kit Processing Amendments. This bill mandates the DNA testing of all sexual assault kits. The Legislature partially funded this bill that will enhance sexual assault victims’ access to justice through more complete evidence when alleged attacks occur.

The Bar also supported Sen. Hillyard’s S.B. 76, Post-Conviction DNA Testing Amendments. This bill lowers the threshold to file for post-conviction DNA testing if the petitioner can show a “reasonable probability that the petitioner would not have been convicted, or would have received a lesser sentence”. Currently a petitioner must establish “factual innocence.”

Sen. Todd Weiler also drafted a technical amendment to the Bar-supported S.B. 134, Indigent Defense Commission Amendments, based on feedback from the Government Relations Committee. This change clarified which parties shall be provided counsel in juvenile delinquency and child welfare proceedings.

Uniform Laws

Rep. Lowry Snow passed H.B. 13, Uniform Fiduciary Access to Digital Assets Act, after running out of time in 2016. This new law outlines the procedure for certain persons to gain access to a deceased or incapacitated individual’s digital assets, such as online accounts. Sen. Lyle Hillyard passed S.B. 58, Uniform Voidable Transactions Act, a repeal and reenactment of the current Fraudulent Transfers Act. As originally drafted, this bill excluded limited liability companies from the Act, but Sen. Hillyard listened to concerns from the Bar and had that language added.

Other uniform laws that passed include the Uniform Powers of Appointment Act (H.B. 21), Uniform Parentage Act (S.B.147, Bar Supported), Uniform Unclaimed Property Act (S.B. 175), Uniform Commercial Real Estate Receivership Act (SB208), and the Revised Uniform Athlete Agents Act (S.B. 243).

Other Bills of Interest to the Legal Profession

It is hard to choose which bills will have the greatest impact on the legal profession, but here are a few that we think could be of interest to a wide variety of practice areas:

For example, H.B. 41, Utah Revised Business Corporation Act Modifications, adds several considerations that a board may consider, other than share price, when considering an offer to purchase the corporation. The bill also puts in place certain procedural requirements for interested shareholders (those owning more than 20% of the outstanding shares) likewise seeking business combinations.

Homeowners Associations will also have new hurdles to jump through if they want to take action against certain parties. HB 157, Homeowners Association Revisions, includes new requirements to obtain a threshold of association members, and to set aside funds in a trust for a portion of anticipated legal expenses. The bill does provide an exception for claims below $75,000.

Trying to get that adult child out of your basement? H.B. 202, Trespass Amendments, expands the definition of criminal trespass to apply to long-term guests. However, there is some concern that the bill will conflict with longstanding eviction procedures and other landlord-tenant law.

Litigators should pay close attention the next time a case involves a government entity. H.B. 399, Government Immunity Amendments. H.B. 399 reverts to previous Utah Supreme Court rule regarding the ability to waive governmental immunity in certain circumstances. It also provides a statutory savings clause for claims that are dismissed for a reason other than the merits and would otherwise be precluded by a statute of limitations having run. S.B. 98, Excess Damages Claims, changes the inflation-adjustment formula for the statutory cap on damages to include medical care and medical services, rather than relying strictly on the consumer price index.

S.B. 203, Real Estate Trustee Amendments, allows an entity organized to provide legal services to act as a real estate trustee, so long as only attorneys affiliated with the entity sign any relevant documents. Previously only an individual member of the Bar could act as trustee.

If you Dare Talk Politics at Dinner Parties, What Else you Need to Know

Liquor

Although legislators declined to take down the partition concealing alcoholic beverage preparation (the so-called Zion Curtain), they have added two new options for restaurant compliance: a 10-foot buffer where children are not to be seated, or a 4-foot barrier separating the “bar” and “restaurant” area of an establishment. Restaurants built prior to 2009 will lose their grandfathered status and have to choose one of the three options. Other reforms include license consolidation, earlier weekend alcohol service (10:30 AM), and new state oversight of grocery and convenience stores through the Division of Alcoholic Beverage Control.

Taxes

With the exception of tweaking the gas tax formula in order to raise the levy by $.02/gallon next year and accelerate increases to a $.40 ceiling, the Legislature rejected several proposals to overhaul the state’s tax system. However, with the continuing rise in online sales, and a longtime shift from a goods-focused to a service-oriented economy, expect further discussion during the 2017 interim. This includes restoring the sales tax on food, looking for ways to increase use tax compliance with online purchases, changing the corporate tax calculation to a single-sales factor, and others.

Education

Hoping to fend off the proposed Our Schools Now tax increase initiative, legislators dedicated $90 million in new money to education, an increase of 3%. Enrollment growth was also fully funded, at $64 million. Retired teacher and Democrat Marie Poulson led the charge this year to end school letter grades in HB241, School Accountability Amendments. Her bill received bipartisan support and passed the House of Representatives. The bill was stopped in the Senate where the system remains popular. Senator Ann Millner’s SB 220, Student Assessment and School Accountability Amendments, replaces SAGE with the ACT for high school students, removes the curve previously used to grade schools, and makes a few other tweaks.

Homelessness

House Speaker Greg Hughes opened the Session with a commitment to tackle homelessness as a statewide problem. The Legislature delivered on his promise with funding to complete new shelters in Salt Lake City, and a shelter outside Utah’s Capita, while upgrading the existing Midvale facility to serve families year round.

Summary

Despite our best efforts, the Legislature does not always follow the advice of the Bar or its lobbyists. However, we still appreciate the 104 public servants who work diligently to represent Utah residents. There are likely many issues that impact you and your practice, so we encourage you to remain engaged in the legislative process and with your legislator over the coming year.

 Biography

Douglas S. Foxley, Frank R. Pignanelli and Stephen D. Foxley are attorneys at Foxley & Pignanelli, the preeminent government and public affairs law firm in Utah. They focus on federal, state and local government activities on behalf of numerous corporate and individual clients, and are proud to be the new government relations representatives for the Utah State Bar. Please contact them should you have questions (or jokes) about the legislative process at 801-355-9188 or foxpig@fputah.com.