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Final Legislative Update (03.30.18)

The Legislature has adjourned sine die! The Georgia General Assembly concluded its 40-day legislative session shortly after midnight on Thursday. The State Bar had an eventful year under the Gold Dome, successfully passing five bills this session. Without the help of our lawyer-legislators and our members who volunteered their time to propose these bills, none of this success would have been possible.

For those of you who practice in Georgia courts, please be aware that as of Jan. 1, 2019, all attorneys will be required to e-file pleadings and related documents in state and superior court. Late last week, mandatory civil e-filing language was attached to SB 407, the governor’s criminal justice reform legislation. SB 407 ultimately passed yesterday evening and is now headed to the governor’s desk for signature.

The e-filing language in SB 407 lays out basic requirements and delegates rulemaking authority to the Judicial Council of Georgia. The bill provides that litigants can file for free at a public access terminal in the courthouse or remotely at a cost of $30 per filer, per party for the first 10 filings. The civil e-filing mandate does not apply in connection with a pauper's affidavit, any validation of bonds as otherwise provided for by law, pleadings or documents filed under seal or presented to a court in camera or ex parte, or pleadings or documents to which access is otherwise restricted by law or court order.

Every year, the General Assembly creates law that affects Georgia lawyers and their clients. Below is a non-exhaustive list of legislation we followed that ultimately passed this session:

HB 121 (Rep. Chuck Efstration, R-Dacula) which is part of the State Bar’s legislative package, makes a number of revisions to Georgia’s trust code. The bill will extend the Rule Against Perpetuities to a 360-year permissible vesting period for a nonvested property interest, like a trust, created after June 30, 2018. The bill also provides five methods for modifying an irrevocable trust, among other things.

HB 897 (Rep. Chuck Efstration, R-Dacula) which is part of the State Bar’s legislative package, provides cleanup language to last year’s Uniform Power of Attorney Act. The bill clarifies the exceptions to the act, specifies how a power of attorney must “substantially reflect” the statutory form, and amends the section addressing an agent’s specific and general authority, among other things.

HB 190 (Rep. Meagan Hanson, R-Brookhaven) which is part of State Bar’s legislative package, codifies that antenuptial agreements must be in writing, signed by both parties, and attested by at least two witnesses, at least one of which must be a notary.

SB 131 (Sen. Blake Tillery, R-Vidalia) which is part of the State Bar’s legislative package, amends the juvenile code so that an appeal of an order terminating parental rights stays a pending adoption proceeding related to that child until the termination appeal is finalized. The bill also requires that a waiver of a parent’s right to an attorney in a juvenile case be knowing, voluntary and on the record.

SB 301 (Sen. John Kennedy, R-Macon) which is part of the State Bar’s legislative package, will allow a fiduciary to manage digital property like computer files, virtual currency and digital photos like they would tangible property. The bill also gives internet users the power to plan for the management and disposition of digital communication that is stored by a custodian, like Facebook or Google, subject to the custodian’s terms of service.

SB 407 (Sen. Brian Strickland, R-McDonough) is Gov. Deal’s final criminal justice reform bill. SB 407 requires a judge to consider a criminal defendant’s financial resources and obligations when setting bail for an individual charged with a misdemeanor offense. The bill also gives courts discretion to allow defendants to satisfy the payment of probation fees with community service and creates a statewide data exchange between law enforcement agencies. SB 407 also mandates civil e-filing in state and superior court, as discussed above.

SB 194 (Sen. Jesse Stone, R-Waynesboro) addresses issues that arose out of the 2016 revisions to the garnishment code. Specifically, the bill amends the proper calculation of the minimum wage to $217.50 and also fixes a loophole in O.C.G.A. 18-4-19 (c) and (d) that may allow a defendant to stand in the shoes of his or her creditor.

HR 993 (Rep. Chuck Efstration, R-Dacula) is a constitutional amendment that will create a statewide business court. HR 993 amends specific provisions of the constitution related to venue and the appointment of business court judges. This will appear on the November 2018 ballot in Georgia.

SB 436 (Sen. Brian Strickland, R-McDonough) cleans up language governing Georgia’s probate courts. The bill updates certain training requirements for probate judges, clarifies language for appointing vacancies, and raises the required bond held by a probate court, among other things.

HB 904 (Rep. Meagan Hanson, R-Brookhaven) will revise the Recreational Property Act so that the exception in 51-3-25(b) applies to any individual who lawfully enters a property on a date when the landowner charges for recreational use and the individual is injured in connection with the recreational use for which the charge was made. These changes come in the wake of the Supreme Court of Georgia’s recent decision in Mayor & Alderman of Garden City v. Harris.

HB 673 (Rep. John Carson, R-Marietta) also known as the “Distracted Driving Bill,” prohibits a driver from holding or supporting a wireless telecommunications device while operating a motor vehicle in Georgia.

SB 406 (Sen. Brian Strickland, R-McDonough) will enact the Georgia Long-term Care Background Check Program, which sets minimum standards for criminal background checks of owners, applicants for employment, and direct access employees at assisted living, home health care and hospice facilities.

HB 918 (Rep. Chuck Efstration, R-Dacula) gradually lowers the state income tax from 6 percent to 5.5 percent over the next two years.

HB 410 (Rep. Alan Powell, R-Hartwell) caps the amount of money a condo association can charge for an accounting statement of outstanding dues and payments, which is typically provided at a closing.

HB 834 (Rep. Mandi Ballinger, R-Canton) will allow a tenant to terminate a lease after providing the landlord with written notice when a civil family violence order or criminal family violence order has been issued protecting the tenant or his or her minor child.

HB 790 (Rep. Chuck Efstration, R-Dacula) makes changes to the Administrative Procedure Act by providing administrative law judges with the authority to issue final decisions, impose civil sanctions and enforce subpoenas.

HB 441 (Rep. Barry Fleming, R-Harlem) creates self-settled asset protection trusts in Georgia.

SB 315 (Sen. Bruce Thompson, R-White) makes it a crime to knowingly and intentionally access a computer or computer network without the authority to do so. The bill creates exceptions for persons in the same household, cybersecurity defense measures and access for a legitimate business activity.

HB 684 lays out the state’s $26.2 billion budget for fiscal year 2019. This year’s budget fully funds the state’s Quality Basic Education formula by appropriating an additional $167 million of state funds into K-12 education in Georgia. The budget continues to fund $2.5 million to the Administrative Office of the Courts in order to administer grants for civil legal services to protect victims of domestic violence, as well as $800,000 to fund the Georgia Appellate Practice and Resource Center.

HB 159 (Rep. Bert Reeves, R-Marietta) updates and modernizes Georgia’s adoption code. Gov. Deal signed HB 159 into law on March 3.

HB 661 (Rep. Bruce Williamson, R-Monroe) repeals language requiring a seller of real property to obtain a certificate of clearance from the Georgia Department of Revenue indicating that there are no active liens on his or her property at the time of sale. HB 661 passed both chambers early in the session and was signed into law by Gov. Deal on Feb. 20.

A number of bills we watched throughout the session did not make it across the finish line. Here is a short list of bills that did not pass by Day 40 and will not become law:

HB 605 (Rep. Jason Spencer, R-Woodbine) known as the “Hidden Predator Bill.” The Senate passed their amended version of HB 605 early in the day on Thursday. The bill was sent back to the House, where members voted to “disagree” to the Senate’s new language. The House appointed members to a conference committee to compromise on the bill’s language, but in the final hour of the night, the Senate did not take any action. Ultimately, the bill did not receive the final votes it needed to pass by the end of the session.

HB 791 (Rep. Chuck Efstration, R-Dacula) would have waived the defense of sovereign immunity as to any claim, counterclaim, cross-claim or third-party claim brought by an aggrieved person seeking a declaratory judgment or injunctive relief against the state. The bill intended to address the issue of sovereign immunity after the Supreme Court of Georgia’s decisions in Ga. Dept. of Natural Resources v. Center for Sustainable Coast, Inc. and Lathrop v. Deal. HB 791 was not brought up for a vote in the Senate on Day 40 and therefore failed to pass by the end of session.

HB 705 (Rep. Trey Kelley, R-Cedartown) which would have raised the jurisdictional limit for filing a claim in Magistrate Court from $15,000 to $25,000. HB 705 did not receive a vote in the House before Crossover Day.

SB 452 (Sen. Jesse Stone, R-Waynesboro) which would require Georgia judges to inquire and determine whether a defendant is lawfully present in the United States and whether Immigration and Customs Enforcement has placed a detainer on that defendant. The bill did not receive a vote in the House by the end of Day 40.

SB 373 (Sen. Lindsey Tippins, R-Marietta) which started the session as a bill to give Cobb County an additional superior court judge. After the bill passed in the Senate, the original language was stripped in the House Judiciary Committee and replaced with hate crime legislation that would have increased criminal penalties for specific crimes against an individual intentionally selected because his or her actual or perceived religion, race, national origin, homeless status, gender or sexual orientation. SB 373 did not make it to the House floor for a vote by Day 40 of the session.

HB 896 (Rep. Chuck Efstration, R-Dacula) part of the State Bar’s legislative package, would have made technical revisions to the guardianship code by integrating citations to provisions in Title 29 Chapter 11 in order to provide clarity for attorneys practicing in this area and to prevent litigation based on ambiguities between these chapters. It did not make it out of the House by Crossover Day and therefore did not pass this year.

We appreciate all of our Bar members who have reached out to us with their comments throughout the session. If you have questions about the legislative session or any of the bills we’ve mentioned, please email Christine Butcher Hayes, director of Governmental Affairs, at christineh@gabar.org.

Legislative Update, Week 11 (03.28.18)

We've entered the final stretch! This marks the final week of the 40-day legislative session, with day 39 on Tuesday and day 40 on Thursday. The General Assembly packs their schedule in these final days, often adjourning late at night. Below is an update on some of the legislation the State Bar has been tracking throughout the session.

State Bar members who practice in Georgia courts should be aware of recent changes to SB 407. On Thursday, March 22, the House Judiciary Non-Civil Committee attached mandatory civil e-filing language to SB 407 (the governor's criminal justice reform legislation). The attached language would mandate e-filing in Georgia's superior and state courts. Litigants can file for free at a public access terminal in the courthouse or remotely at a cost of $30 per filer, per party. The $30 fee would be a one-time fee paid at the time of the first filing on behalf of the party. The e-filing language can be found on lines 63-118 and lines 152-206 of the bill.

HB 121, the State Bar's bill modifying the trust code, passed by a vote of 42-1. The bill is now headed to Gov. Deal's desk for signature. The State Bar is grateful for the bill's sponsor, Rep. Chuck Efstration (R-Dacula), as well as Sen. Jesse Stone (R-Waynesboro), who carried the bill in the Senate, for their service to the state of Georgia and their fellow Bar members. We would also like to thank Nick Djuric and the members of the Fiduciary Law Section who worked tirelessly on this bill that will modernize the Georgia trust code and make Georgia more competitive with its surrounding states.

HR 993, the business courts constitutional amendment, also passed in the Senate Judiciary Committee on Thursday. The committee made changes so that judges appointed by the governor for a 5-year term on the business court be subject to approval by a majority vote of the Senate and House Judiciary Committees. The Senate also created a companion bill that creates the Georgia Council on the Statewide Business Court to study subject matter jurisdiction and caseload data of the proposed business court.

HB 791, which revises Georgia's sovereign immunity law, passed in the Senate Judiciary Committee on Thursday. The most recent substitute to HB 791 waives sovereign immunity as to any claim, counterclaim, cross-claim or third-party claim brought in the courts of this state by an aggrieved person seeking a declaratory judgment or injunctive relief against the state. The substitute removed language that applied to counties and municipalities.

HB 673, also known as the Distracted Driving Bill, passed with changes in the Senate Judiciary Committee on Thursday. HB 673 prohibits any person from physically holding a cell phone or stand-alone electronic device while operating a motor vehicle. The senate changes lowered the points assessed to 1 point for a first violation, 2 points for a second violation and 3 points for a third violation. It also lowers the fine for the first two convictions of "distracted driving" under the statute. The bill faces a Senate floor vote and an "agree" vote in the House in order to pass by sine die on March 29.

If you have questions or comments on these bills or any other legislation before the General Assembly this session, please email Christine Butcher Hayes, director of governmental affairs, at christineh@gabar.org. For additional information about the State Bar of Georgia's legislative program and agenda, to track legislation or to contact the Bar's legislative team, please visit the Legislative Program page.

Legislative Update, Weeks 9 and 10 (03.20.18)

Since our last update, the Legislature has completed days 30 through 36 of the 40-day legislative session. Committees are completing their final meetings of the session and laying the groundwork for the final few days of the legislative calendar. Below is a summary of action taken on the State Bar's legislative package, as well as other bills of interest to Bar members.

Power of Attorney Act

HB 897, sponsored by Rep. Chuck Efstration (R-Dacula), passed out of the Senate Judiciary Committee on March 7 and made its way to the Senate floor on March 19, where it passed by a vote of 53-0. HB 897 is now headed to the governor's desk for signature. This legislation will make small revisions to the Georgia Power of Attorney Act in order to clarify certain provisions and improve the statute's utility. We greatly appreciate the time and effort put into this bill by Rep. Efstration, as well as Blake Melton and the other members of the State Bar's Fiduciary Law Section.

Revised Uniform Access to Digital Assets Act (RUFADA)

SB 301, sponsored by Sen. John Kennedy (R-Macon), passed out of the House Judiciary Committee on March 6. The bill passed 162-2 in the House on March 19 and is now headed to Gov. Deal for signature. SB 301 provides legal authority for fiduciaries to manage digital assets in accordance with the user's estate plan, while protecting a user's private communications from unwarranted disclosure. The State Bar thanks Sen. Kennedy for his support, as well as Kyle King and the other members of the Fiduciary Law Section for their hard work on SB 301.

Antenuptial Agreements

HB 190, sponsored by Rep. Meagan Hanson (R-Brookhaven) passed in the Senate Judiciary Committee on Thursday, March 16. HB 190 seeks to codify that antenuptial agreements must be in writing, signed by both parties, and attested by at least two witnesses, at least one of which must be a notary. HB 190 is currently in the Senate Rules Committee.

Trust Code Revisions

HB 121 passed out of the Senate Judiciary Committee on March 12. The bill is currently in the Senate Rules Committee, which sets the floor calendar for the Senate.

Other Notable Legislation

HB 410 passed out of the Senate Judiciary Committee on March 19 after several hours of testimony from citizens during the previous week. HB 410 caps the amount a condominium association can charge for a statement of accounting that is typically provided at closing.

SB 436, sponsored by Sen. Brian Strickland (R-McDonough), passed in the House on March 15. The bill cleans up the code governing probate courts and specifies language for appointing probate court vacancies, among other things.

SB 373 was originally intended to give Cobb County an additional superior court judge, but after passing in the Senate, the bill stalled when it was discovered that the clerk of court had miscounted the number of cases Cobb judges handle. That language was stripped off of the bill on March 8 and replaced with a hate crime bill that would increase penalties for criminal acts motivated by religion, race, national origin, homeless status, sexual orientation or gender. Rep. Wendell Willard (R-Sandy Springs) spearheaded the changes and the bill ultimately passed out of the House Judiciary Committee on the same afternoon. SB 373 is currently before the House Rules Committee.

We are keeping a close watch on the Senate Judiciary Committee, where HB 791 (the sovereign immunity bill) and HR 993 (the constitutional amendment on business courts) are still in the hearing stage.

There are four legislative days left in this session. If you have questions or comments on these bills or any other legislation before the General Assembly this session, please email Christine Butcher Hayes, director of governmental affairs, at christineh@gabar.org. For additional information about the State Bar of Georgia's legislative program and agenda, to track legislation or to contact the Bar's legislative team, please visit the Legislative Program page.

Legislative Update, Week 8 (03.05.18)

It was certainly another eventful week under the Gold Dome. All in all, the State Bar had five of its six bills "cross over" by Feb. 28. We are keeping our fingers crossed that we can successfully see all five of those bills cross the finish line by session's end on March 29. Below is a summary of action taken on the State Bar's legislative package, as well as other bills of interest to Bar members.

HB 121, the State Bar's trust code revision legislation, passed in the House on Monday by a vote of 170-4.

SB 407, part of the governor's multi-year Criminal Justice Reform legislation, passed in the Senate on Monday. SB 407 creates a statewide data exchange between law enforcement agencies and tackles misdemeanor bail reform, among other things.

A bill creating self-settled asset protection trusts in Georgia passed in the Senate Banking and Finance Institutions Committee on Tuesday. The Senate substitute to the bill adds exceptions to a spendthrift provision in this type of trust. HB 441 passed the House during the 2017 legislative session but did not get out of committee in the Senate before Day 40. Because the bill already passed in the House during the first year of a two-year legislative cycle, it only needs to pass in the Senate this year to complete the process.

It was a late night for the State Bar's legislative team down at the Capitol on Wednesday night. At about 12:15 a.m. on Crossover Day, HB 897 passed in the House by a vote of 169-0. HB 897, sponsored by Rep. Chuck Efstration (R-Dacula), makes small revisions to the Georgia Power of Attorney Act in order to clarify certain provisions and improve the statute's utility. We appreciate the midnight effort from Rep. Efstration to get these necessary revisions passed before the Crossover Day deadline!

A bill restricting the use of cell phones in cars caught a lot of attention on Wednesday. HB 673, known as the Distracted Driving Bill, would prohibit a driver from holding or supporting a wireless telecommunications device while operating a motor vehicle in Georgia. The bill also increases the number of points added to a driver's license for a violation of the statute. The proposed statute has a few exceptions, including one that allows use of a hand-held device for reporting a serious traffic accident.

The House passed a constitutional amendment on Wednesday that would create a statewide business court. HR 993 amends specific provisions of the constitution related to venue, selection of business court judges and judicial qualifications.

A bill that addresses sovereign immunity in Georgia unanimously passed in the House on Wednesday. HB 791 waives sovereign immunity for actions against the state seeking declaratory or injunctive relief from the enforcement of a state statute on the basis that it violates the Constitution of Georgia or the U.S. Constitution. The bill also waives sovereign immunity for actions against counties and municipalities acting without lawful authority, beyond the scope of their official power, or in violation of the constitution, a state statute, a rule or regulation adopted by a state governmental entity or a local ordinance.

On Wednesday, the House and the Senate passed identical bills that seek to revise the Recreational Property Act so that O.C.G.A. § 51-3-25(2) applies to injuries suffered by any person on a date when the landowner charges for recreational use. The legislation comes in the wake of the Supreme Court of Georgia's recent decision in Mayor & Alderman of Garden City v. Harris. HB 904 will now cross over to the Senate and SB 431 will now cross over to the House. Here's an interesting bit of legislative procedure: if both HB 904 and SB 431 complete the legislative process and end up on the governor's desk, whichever bill the governor signs last will control by law. This rule applies to any two bills that change the same exact code provision.

Here are some additional bills that also passed on Crossover Day: HB 410 (caps the amount a homeowner's association can charge for a statement of outstanding dues and payments) and HB 834 (allows a tenant to terminate a lease after providing the landlord with written notice when a civil family violence order or criminal family violence order has been issued).

After several days of national press stemming from a tweet by Lt. Gov. Casey Cagle, the Senate passed HB 918 on Friday without a much-discussed jet fuel tax break that would have largely benefited Delta Airlines. The House agreed to the Senate changes to the bill on Friday afternoon. HB 918, which gradually lowers the state income tax from 6 percent to 5.5 percent over the next two years, is now headed to the governor's desk for signature.

On Friday, SB 131, a bill brought by the State Bar's Child Protection & Advocacy Section, passed unanimously in the House. SB 131 seeks to amend the juvenile code so that an appeal of an order terminating parental rights would stay a pending adoption proceeding related to that child until the termination appeal is finalized. The bill was amended in a House committee, which added language to clarify the standard a judge considers when terminating parental rights. SB 131 must now go back to the Senate for a final vote to agree on the new language before it heads to Gov. Deal.

There are 11 legislative days left in this session. If you have questions or comments on these bills or any other legislation before the General Assembly this session, please email Christine Butcher Hayes, director of governmental affairs, at christineh@gabar.org. For additional information about the State Bar of Georgia's legislative program and agenda, to track legislation or to contact the Bar's legislative team, please visit the Legislative Program page.

Legislative Update, Week 7 (02.26.18)

Crossover Day is upon us and those down at the Capitol are keeping a close eye on which bills clear the hurdle to survive the remaining 12 days of the legislative session. For those unfamiliar with the Georgia legislative process, all active legislation must pass in one chamber by Crossover Day (Day 28) in order to continue through the legislative process this session. Because we are in the second year of a two-year legislative cycle, any legislation that has not "crossed over" by Wednesday is effectively dead and must be re-filed next year.

Here is a summary of legislation that was on our radar last week.

On Monday, Feb. 19, the Senate unanimously passed SB 301, the Uniform Revised Access to Digital Assets Act. SB 301 provides legal authority for fiduciaries to manage digital assets in accordance with the user's estate plan, while protecting a user's private communications from unwarranted disclosure. Now that SB 301 has crossed over, the House Judiciary Committee will review the bill in the coming weeks.

SB 407, part of the governor's multi-year Criminal Justice Reform legislation, passed the Senate Judiciary Committee on Wednesday. SB 407 creates a statewide data exchange between law enforcement agencies and tackles misdemeanor bail reform, among other things.

On Thursday, the House Judiciary Committee passed a sovereign immunity bill that addresses concerns following the Supreme Court of Georgia's decision in Ga. Dept. Natural Resources v. Center for Sustainable Coast and Lathrop v. Deal. HB 791, sponsored by Rep. Chuck Efstration (R-Dacula), waives sovereign immunity for actions against the state seeking declaratory or injunctive relief from the enforcement of a state statute on the basis that it violates the Constitution of Georgia or the Constitution of the United States. The bill also waives sovereign immunity for actions against counties and municipalities acting without lawful authority, beyond the scope of their official power or in violation of the constitution, a state statute, a rule or regulation adopted by a state governmental entity, or a local ordinance.

The House Judiciary Committee also heard HR 993 on Thursday. HR 993 is a constitutional amendment that would create a statewide business court in Georgia. The resolution passed unanimously and will move on to the House Rules committee, which will determine when the constitutional amendment will be heard on the House floor.

In their final committee hearings before Crossover Day, House Judiciary Committee heard HB 904 and the Senate Judiciary Committee heard SB 431. These identical bills seek to revise the Recreational Property Act so that 51-3-25(b) applies to injuries suffered by any person on a date when the landowner charges for recreational use. The legislation comes in the wake of the Supreme Court of Georgia's recent decision in Mayor & Alderman of Garden City v. Harris. The bills received a "do pass" vote in their respective committees.

The House also passed a tax bill on Thursday that would gradually lower the state's top income tax rate from 6 percent to 5.5 percent and double the standard deduction. HB 918 comes on the heels of the federal tax overhaul that Congress passed in December of last year. The bill seeks to address the state tax increase that many Georgians are projected to face if the Legislature does not address certain discrepancies between the 2018 Internal Revenue Code and Georgia's tax code.

We neglected to mention last week that HB 661 passed in the Senate on Feb. 5, and has been transmitted to Gov. Deal for signature. HB 661 repeals language requiring a seller of real property to obtain a certificate of clearance from the Georgia Department of Revenue indicating that there are no active liens on his or her property at the time of sale. HB 661 comes in the wake of regulations proposed by the Department of Revenue in the fall that would have expanded the certificate of clearance requirements to apply not just to bona fide purchases but to any transfer of real property.

For those keeping an eye on the Fiduciary Law Section's trust code bill, HB 121 will get a vote on the House floor today. Here's to hoping Rep. Efstration avoids heckling from fellow lawyer-legislators on the Rule Against Perpetuities.

Finally, the House and Senate held a special joint session last Thursday for the State of the Judiciary address. It was a delight listening to Chief Justice P. Harris Hines discuss the success of accountability courts, the decline of juvenile detention in favor of rehabilitative alternatives and the overall health of Georgia's judiciary. This was Chief Justice Hines' final State of the Judiciary address ahead of his retirement this summer. We are grateful for his leadership and service over the course of his 44 years on the bench.

If you have questions or comments on these bills or any other legislation before the General Assembly this session, please email Christine Butcher Hayes, director of governmental affairs, at christineh@gabar.org. For additional information about the State Bar of Georgia's legislative program and agenda, to track legislation or to contact the Bar's legislative team, please visit the Legislative Program page.

Legislative Update, Weeks 5 and 6 (02.16.18)

The Legislature has worked at a hectic pace for the past two weeks as committees hear bills and debate legislation. Crossover Day is Feb. 28, marking the point in the session where a bill must pass in one chamber to continue through the process. The halls of the State Capitol have been humming with activity, as everyone from the Girl Scouts to the Future Farmers of America descend on Atlanta to promote legislation and meet their elected officials.

Here's a rundown of the State Bar's legislation over the last two weeks . . .

On Monday, Feb. 5, HB 159, the comprehensive update of Georgia's adoption code sponsored by Rep. Bert Reeves (R- Marietta), received its final vote in the Senate. The bill is now headed to the governor's desk after years of work and negotiation. We congratulate Rep. Reeves, the Georgia Council of Adoption Lawyers and the numerous attorneys that worked tirelessly to perfect this legislation and make these necessary changes to Georgia's adoption code.

On Tuesday, Feb. 6, the YLD Leadership Academy joined the State Bar's legislative team under the Gold Dome for their annual "Day at the State Capitol." Participants saw the legislative session in full swing, snapped a picture with the governor and concluded with a legislative luncheon. A big thank you to Rep. Bert Reeves (R-Marietta), Rep. Meagan Hanson (R-Brookhaven), Sen. Jen Jordan (D-Atlanta), Sen. Brian Strickland (R-McDonough) and Sen. Blake Tillery (R-Vidalia) who participated in our lunchtime panel about balancing the practice of law with legislative duties and the importance of lawyers in the Legislature.

Also on Feb. 6, the House Judiciary Committee heard the most recent version of HB 121, sponsored by Rep. Chuck Efstration (R-Dacula). HB 121 combines the language of HB 122 (extending the Rule Against Perpetuities to 360 years) with a number of proposed updates to the trust code. HB 121 is currently pending in the House Rules Committee.

On Feb. 14, the House unanimously passed HB 190, sponsored by Rep. Meagan Hanson (R-Brookhaven). HB 190, which is part of State Bar's legislative package, seeks to codify that antenuptial agreements must be in writing, signed by both parties and attested by at least two witnesses, at least one of which must be a notary. HB 190 will now cross over to the Senate, where it has been assigned to the Senate Judiciary Committee.

Two additional bills from the Fiduciary Section cleared the House Judiciary Committee on Thursday, Feb. 15. HB 897 provides cleanup language to last year's Uniform Power of Attorney Act. The bill clarifies the exceptions to the act, specifies how a power of attorney must "substantially reflect" the statutory form, and amends the section addressing an agent's specific and general authority, among other things. HB 896 cleans up the Uniform Adult Guardianship and Conservatorship Proceedings Jurisdiction Act, which passed in 2016. The proposed amendments integrate citations to provisions in Title 29 Chapter 11 in order to provide clarity for attorneys practicing in this area and to prevent litigation based on ambiguities between these chapters. Both HB 896 and HB 897 are sponsored by Rep. Chuck Efstration (R-Dacula). Rep. Efstration has done yeoman's work sponsoring three complex but necessary bills that will clarify and update our fiduciary laws in Georgia. The State Bar is grateful for his service and his leadership.

The Georgia Council on Criminal Justice Reform released its 2018 report on Thursday, Feb. 14. This is the final report to the Governor's Office under Gov. Deal's tenure and caps years of sweeping changes to Georgia's criminal justice system. Two bills have been filed to address the recommendations in the report. SB 407 requires a judge to consider a criminal defendant's financial resources and obligations when setting bail for an individual charged with a misdemeanor offense. The bill also gives courts discretion to allow defendants to satisfy the payment of probation fees with community service. SB 406 would enact the Georgia Long-term Care Background Check Program, which sets minimum standards for criminal background checks of owners, applicants for employment, and direct access employees at assisted living, home health care, and hospice facilities.

On Tuesday, Feb. 20, the full Senate will vote on SB 301, which is part of the State Bar's legislative package. SB 301, sponsored by Sen. John Kennedy (R-Macon), allows a fiduciary to manage digital property like computer files, virtual currency and digital photos like they would tangible property. The bill also gives internet users the power to plan for the management and disposition of digital communication that is stored by a custodian, like Facebook or Google, subject to the custodian's terms of service.

The General Assembly will convene Tuesday, Feb. 20, through Friday, Feb. 23, for legislative days 23 through 26. If you have questions or comments on these bills or any other legislation before the General Assembly this session, please email Christine Butcher Hayes, director of governmental affairs, at christineh@gabar.org. For additional information about the State Bar of Georgia's legislative program and agenda, to track legislation or to contact the Bar's legislative team, please visit the Legislative Program page.

Legislative Update, Week 4 (02.05.18)

Last week was a busy one under the Gold Dome with the Legislature in session Monday through Thursday for days 11 through 14 of its 40-day session.

On Monday, the House unanimously passed HB 661, which would repeal language requiring a seller of real property to obtain a certificate of clearance from the Georgia Department of Revenue indicating that there are no active liens on his or her property at the time of sale. As we mentioned last week, HB 661 comes in the wake of regulations proposed by the Department of Revenue in the fall that would have expanded the certificate of clearance requirements to apply not just to bona fide purchases but also any transfer of real property. The bill is one of the first to "cross over" this session and is expected to be heard in the Senate Finance Committee in the coming weeks.

A House Judiciary subcommittee heard HB 121 on Monday. HB 121 is legislation brought on behalf of the State Bar's Fiduciary Law Section that would make updates to modernize Georgia's trust code. The updates include amending the Rule Against Perpetuities from a 90-year to a 360-year permissible vesting period, among other things. The House subcommittee voted "do pass" and HB 121 will be heard by the full House Judiciary Committee this week.

On Wednesday, the House Judiciary Committee held a hearing on HB 410, HB 745 and HB 705. HB 410 seeks to cap the amount of money a homeowner's association can charge for a statement of outstanding dues and payments, which is typically provided at a closing. HB 745, sponsored by Rep. Scott Holcomb (D-Atlanta), would allow a tenant to terminate a lease after providing the landlord with written notice when a civil family violence order or criminal family violence order has been issued. HB 705, sponsored by Rep. Trey Kelley (R-Cedartown), seeks to raise the jurisdictional limit for filing a claim in Magistrate Court from $15,000 to $25,000. All three bills were "hearing only" so that the subcommittee could hear testimony from a number of interested parties and stakeholders.

Thursday was an active day for HB 159, the adoption code revamp sponsored by Rep. Bert Reeves (R-Marietta). The House voted to amend the bill after interested parties came to a consensus on safeguards for children whose parents have delegated caregiving through a power of attorney. New provisions added in the House now require the probate courts to maintain a docket where the power of attorney will be filed. HB 159, as amended, passed unanimously in the House and now awaits a vote from the Senate to approve the most recent changes.

A constitutional amendment creating a statewide Business Court was also filed last week. HR 993 gives business courts statewide jurisdiction as provided by law. Business Court judges would be appointed by the governor for a 5-year term. To date there is no accompanying legislation that would prescribe an enabling framework should the amendment pass the Legislature and appear on the ballot in November.

The General Assembly will convene today, Monday, Feb. 5, through Thursday, Feb. 8, for legislative days 15 through 18. The remainder of new items on the Bar's agenda will be introduced in the coming weeks, including revisions to last year's power of attorney legislation.

If you have questions or comments on these bills or any other legislation before the General Assembly this session, please email Christine Butcher Hayes, director of governmental affairs, at christineh@gabar.org. For additional information about the State Bar of Georgia's legislative program and agenda, to track legislation or to contact the Bar's legislative team, please visit the Legislative Program page.

Legislative Update, Week 3 (01.29.18)

Last week was a busy one under the Gold Dome with the Legislature in session Monday through Thursday for days seven through 10 of its 40-day session.

The Real Property Law Section is keeping a close eye on HB 661, which would repeal language requiring a seller of real property to obtain a certificate of clearance from the Georgia Department of Revenue indicating that there are no active liens on his or her property at the time of sale. HB 661 comes in the wake of regulations proposed by the Department of Revenue in the fall that would have expanded the certificate of clearance requirements to apply not just to bona fide purchases but any transfer of real property. The Legislature quickly filed HB 661 early in the session to clarify the execution of the Department of Revenue’s statewide lien database that was created by statute last year. HB 661 quickly passed out of the House Ways and Means Committee and is set for a vote in the House chamber this morning.

A House Judiciary subcommittee held its first hearing on HB 674, the sovereign immunity bill introduced by Rep. Wendell Willard (R-Sandy Springs), which would waive the defense of sovereign immunity as to any claim, counterclaim, cross-claim or third-party claim brought by an aggrieved person seeking a declaratory judgment or injunctive relief against the state. Debate on the bill included whether an injury in fact must be to an aggrieved person and whether the bill should include a provision for attorney’s fees in narrow circumstances. The subcommittee did not vote on HB 674, and will continue to hear testimony and review the bill in the coming weeks.

On Wednesday, Rep. Meagan Hanson (R-Brookhaven) presented HB 190 to the House Judiciary Committee. HB 190, which is part of State Bar’s legislative package, seeks to codify that antenuptial agreements must be in writing, signed by both parties and attested by at least two witnesses, at least one of which must be a notary. HB 190 received a “do pass” vote by the Judiciary Committee and will move on to the House Rules Committee this week. Rep. Hanson, a freshmen legislator and family law attorney, has done a great job advocating this legislative priority on behalf of the State Bar.

Also on Wednesday, the House Judiciary Committee voted “do pass” on HB 630, which seeks to clean up language governing Georgia’s probate courts. The bill updates certain training requirements for probate judges, clarifies language for appointing vacancies and raises the required bond held by a probate court, among other things.

On Thursday in the Senate Judiciary Committee, freshmen Sen. Blake Tillery (R-Vidalia) did great work presenting SB 131, which is a bill brought by the State Bar’s Child Protection and Advocacy Section. The most recent substitute of SB 131 also includes the language of SB 130. SB 131 seeks to amend the juvenile code so that an appeal of an order terminating parental rights would stay a pending adoption proceeding related to that child until the termination appeal is finalized. This is so both children and parents know that an adoption proceeding following a termination of parental rights is final. It would also require that a waiver of a parent’s right to an attorney in a juvenile case be knowing, voluntary and on the record.

The General Assembly will convene today, Monday, Jan. 29, through Thursday, Feb. 1, for legislative days 11 through 14. We expect to see the annual report of the Georgia Criminal Justice Reform Council released shortly, which we will continue to monitor closely and participate in as needed. The remainder of new items on the Bar’s agenda will be introduced in the coming weeks.

If you have questions or comments on these bills or any other legislation before the General Assembly this session, please email Christine Butcher Hayes, director of governmental affairs, at christineh@gabar.org. For additional information about the State Bar of Georgia’s legislative program and agenda, to track legislation or to contact the Bar’s legislative team, please visit the Legislative Program page.

Legislative Update, Weeks 1 and 2 (01.22.18)

And they're off! The 154th session of the Georgia General Assembly commenced the second year of its two-year cycle on Jan. 8. While the General Assembly is constitutionally required to start on the second Monday of the year, the buzz of the national championship game overshadowed politics during the first few days under the Gold Dome.

The early days of the session are often used by legislators and policymakers to preview their priorities for the months ahead and last week was no different. Gov. Deal promoted a proposed constitutional amendment to expand Georgia's business courts in order to provide "an efficient and dependable forum to litigants in every corner of the state for the resolution of complex matters." The governor also gave his final State of the State address on Jan. 11, where he touched on the growth of Georgia's technical colleges and transportation investment throughout the state. Following his address, the Governor's Office released this year's proposed state budget, which is projected to include $26 billion in state revenue.

We expect to hear a lot about adoption this session. HB 159, sponsored by Rep. Bert Reeves (R-Marietta), is an extensive modernization of Georgia's adoption code. The bill passed the House unanimously last year but faced political obstacles in the Senate when a controversial religious liberty amendment was proposed in committee. Despite last minute attempts to get the bill across the finish line, it ultimately failed to pass in the Senate during the final moments of the 2017 session.

The Senate Judiciary Committee took up HB 159 again on Jan. 10, where it integrated changes proposed by a Senate working group that met over the summer. The most notable change incorporates language that would allow a parent to give power of attorney over his or her child to another individual for a limited period of time. Gov. Deal vetoed a bill with similar provisions last year citing concerns about the lack of oversight by the courts and the Division of Family and Children Services. The Senate Judiciary Committee voted to pass HB 159 with the new language following the committee hearing on Jan. 10. The bill ultimately passed the full Senate on Jan. 18 by a vote of 40-13. It now moves back to the House, where members can approve the changes made by the Senate or amend the bill on the House floor.

House Judicial Chairman Wendell Willard (R-Sandy Springs) recently filed HB 674, which would waive the defense of sovereign immunity as to any claim, counterclaim, cross-claim or third-party claim brought by an aggrieved person seeking a declaratory judgment or injunctive relief against the state. The initial draft of the bill is intended as a starting point as the Legislature seeks to address the issue of sovereign immunity after the Supreme Court of Georgia's decisions in Ga. Dept. of Natural Resources v. Center for Sustainable Coast, Inc. and Lathrop v. Deal.

On Thursday, the Senate Judiciary Committee voted to pass SB 194, which seeks to resolve issues that arose out of the 2016 revisions to the garnishment code. Specifically, the bill amends the proper calculation of the minimum wage to $217.50 and also fixes a loophole in O.C.G.A. § 18-4-19 (c) and (d) that may allow a defendant to stand in the shoes of his or her creditor.

For a look at the State Bar's 2018 legislative package, visit the Legislative Program page. We plan to keep Bar membership in the know with weekly updates like this one covering legislation that impacts the practice of law. For questions about the legislative session or to plan a lobby day at the State Capitol, please reach out to Christine Butcher Hayes, Director of Governmental Affairs, at christineh@gabar.org.