House Committee on Judiciary (05/03/2010)

Final
STAFF SUMMARY OF MEETING

HOUSE COMMITTEE ON JUDICIARY

Date:	05/03/2010	ATTENDANCE

Time:	01:36 PM to 06:52 PM	Court	X
		Gardner B.	X
Place:	HCR 0107	Kagan	X
		King S.	X
This Meeting was called to order by		Miklosi	E
	Representative Levy	Nikkel	*
		Pace	*
This Report was prepared by		Ryden	X
	Jessika Shipley	Waller	X
		McCann	*
		Levy	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
SB10-054 SB10-179 HR10-1008 SB10-128 SB10-012		Referred to Appropriations Referred to Appropriations Postponed Indefinitely Amended, Referred to the Committee of the Whole Referred to the Committee of the Whole

01:37 PM -- Senate Bill 10-054

Representative Levy, sponsor, presented Senate Bill 10-054 concerning the provision of educational services for juveniles against whom charges have been filed in district court. The reengrossed bill requires school districts to provide educational services for no more than four hours per week during the regular school year to juveniles who are charged as adults in criminal matters and are being held pending a trial in county jails or other facilities that detain adult offenders. The school districts are required to comply with the federal Individuals with Disabilities Education Act when the juvenile has a disability. The districts are not required to provide educational services to juveniles who have graduated from high school, received a GED, or refused such services. Juveniles who refuse services must be offered a weekly chance to accept services.

Educational services do not need to be provided in the absence of an appropriate and safe environment for the provision of such services or if the juvenile is violent toward or physically injures a school district employee or contractor. Proper notice must be given to the juvenile, his or her parent or legal guardian, the juvenile's defense attorney, and the court if no appropriate and safe environment is available.

Each school district in which a jail or other facility for the detention of adult offenders is located is required to designate a contact person, who may be the child welfare education liaison. When applicable, the designated contact person is responsible for contacting the juvenile detention facility in which the juvenile was previously held to request any educational or other necessary information. The contact person will also be responsible for ensuring that the juvenile receives educational services while he or she is detained in the jail.

The school district providing educational services may include a juvenile in its pupil enrollment if the school district provides services on or before October 1 or may seek reimbursement from another school district or charter school if the juvenile was included in the other district's or charter school's pupil enrollment for the applicable budget year. If the juvenile was not included in the state's pupil enrollment, the school district may seek reimbursement from the Colorado Department of Education (CDE). The school district providing services will also receive an amount equal to the daily rate established for approved facility schools multiplied by the number of weekdays during the period in which the juvenile is held and receiving services. A school district that provides special education services is also authorized to seek excess costs tuition for a juvenile with an individualized education program (IEP) from the juvenile's school district of residence. The per pupil amount for juveniles who are not counted in pupil enrollment and to pay the daily rate reimbursement for FY 2010-11 are appropriated from the Read-to-achieve Cash Fund.

The official in charge of a jail or other facility where a juvenile charged as an adult is detained pending trial is required to request educational services. He or she must provide an appropriate and safe environment for the provision of such services. Such officials are also required to annually collect specified nonidentifying data and submit the information to the Division of Criminal Justice (DCJ) in the Department of Public Safety. The DCJ is required to make such information available to a member of the public upon request.

Finally, when determining the appropriate placement for a juvenile offender who is charged as an adult, the juvenile justice community in the appropriate judicial district, the district attorney, and the defense counsel are required to consider the juvenile's educational needs.

Representative Levy distributed a fact sheet about the bill (Attachment A) and explained how the legislation would work. She responded to questions from the committee about the individuals who would provide the educational services in jails. The committee discussed whether putting the burden on the school districts rather than on the detention centers is the best policy choice.

01:57 PM -- Elenn Steinberg, representing herself, spoke in support of the bill. Ms. Steinberg expressed her surprise that this issue requires legislation. She believes it is simply the right thing to do.

01:58 PM -- Ted Tow, Colorado District Attorneys' Council (CDAC), spoke in support of the bill. Mr. Tow discussed the final disposition of most direct file cases. Most juveniles will eventually end up in a situation that provides educational services, but it hurts those juveniles to have a six-month gap in their education. He spoke about bed-sharing arrangements between jails. Mr. Tow responded to questions from the committee.

02:01 PM -- Dr. Jacque Phillips, Legal Center for People With Disabilities and Older People, spoke in support of the bill. Dr. Phillips discussed the day-to-day life of juveniles being held in county jails pending a trial. California currently has a law similar to the one proposed by the bill. She spoke specifically about the rights of juveniles with disabilities. Dr. Phillips talked about the safety concerns of the individuals who would provide educational services. She clarified that the bill requires the school districts to provide at least 4 hours per week except in the case of a juvenile with special needs who qualifies for services under the federal Individuals with Disabilities Education Act. She stated her opinion that the current situation is an embarrassing lawsuit waiting to happen.

02:09 PM -- Kim Dvorchak, representing the Colorado Juvenile Defender Coalition and the Colorado Criminal Defense Bar, spoke in support of the bill. Ms. Dvorchak distributed a pamphlet entitled "Caging Children in Crisis" (Attachment B). She provided statistics about juveniles who are housed in adult jails. She talked about the state requirement that juveniles be kept in sight and sound separation from the adult population in jails. Ms. Dvorchak discussed the educational services provided to juveniles in the Division of Youth Corrections. She stated her opinion that the bill is a step in the right direction toward closing gaps in education that occur as a result of direct filing. She responded to questions from the committee.

02:17 PM -- Dr. Skip Barber, Colorado Association of Family and Children's Agencies, spoke in support of the bill. Dr. Barber spoke to the importance of a high school diploma with respect to rehabilitation success. He talked about the economic demographic of a high percentage of the juveniles who have charges directly filed against them.

02:20 PM -- Kris Ward, Office of the Children's Representative, spoke in support of the bill. Ms. Ward acts as a guardian ad litem and she spoke about her experience with juveniles detained in adult jails. She stated her opinion that not providing an education to these juveniles does not make sense.

02:24 PM -- Christine Watson, League of Women Voters of Colorado, spoke in support of the bill. Ms. Watson stated her opinion that providing educational services to juveniles helps to develop their brains and make them productive members of society.

02:26 PM -- Major Vicki Connors, Denver Sheriff's Department, testified about the bill. Major Connors explained that all juveniles who have charges direct filed against them must be housed in adult jails pending a trial. She spoke about the GED program for juveniles at the Denver jail. She talked about the average bond for direct file juveniles. She provided information about a grant she received to provide psychological services to juveniles in the Denver jail. Major Connors responded to questions from the committee.

02:32 PM

Representative Levy wrapped up her presentation of the bill and asked for a favorable recommendation. She addressed the opposition of the Colorado Association of School Boards, which did not send a representative to testify. Representative Gardner also commented on the absence of a representative from the Colorado Association of School Boards.


BILL:	SB10-054
TIME:	02:34:38 PM
MOVED:	Levy
MOTION:	Refer Senate Bill 10-054 to the Committee on Appropriations with a favorable recommendation. Members of the committee commented about their positions on the bill. The motion passed on a vote of 9-0, with 2 excused.
SECONDED:	Court
		VOTE
	Court	Yes
	Gardner B.	Yes
	Kagan	Excused
	King S.	Yes
	Miklosi	Excused
	Nikkel	Yes
	Pace	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes
Final YES: 9 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: PASS

02:38 PM -- Senate Bill 10-179

Representatives Casso and Weissmann, co-sponsors, presented Senate Bill 10-179 concerning the voting rights of persons involved in the criminal justice system. The reengrossed bill allows certain persons convicted of a felony who have completed their term of imprisonment, as defined by the bill, to register to vote. Specifically, it expands voting eligibility for persons convicted of a felony who are:

• serving a sentence of parole;
• serving a direct sentence in a community corrections program;
• placed in a community corrections program under a deferred judgement; and
• sentenced to federal supervised release.

The bill also places requirements on jail administrators, sheriffs, youth corrections facilities, parole officers, probation officers, community correction programs, and others to inform persons of their voting rights and to make voting material and information available. Voting material includes registration forms, mail-in ballot applications, copies of the ballot information booklet (Blue Book), and other election related mailings.

Lengthy committee discussion about constitutional debate over the right to vote ensued.

03:05 PM -- Gregg Kildow, Intervention Community Corrections Services, spoke in support of the bill. Mr. Kildow expressed his opinion that offenders who are serving a sentence in the community should be allowed to vote. He asked for clarification about the information he should provide to offenders in his facilities. He responded to questions from the committee about community corrections.

03:08 PM -- Dianne Tramutola-Lawson, Colorado Citizens United for Rehabilitation of Errants (CURE), spoke in support of the bill. Ms. Tramutola-Lawson discussed other states that never suspend the right to vote for convicted felons. She spoke about her husband's enthusiasm for voting again after he completed a sentence to probation.

03:11 PM -- Major Vicki Connors, Denver Sheriff's Department, testified about the bill. Maj. Connors distributed a pamphlet entitled "Can I Vote from Jail" (Attachment C) and a letter she wrote about voting from jail (Attachment D). She discussed the process of facilitating voting for jail inmates.

03:15 PM -- Reverend Paul Howard, representing himself, spoke in support of the bill. Rev. Howard talked about his experience working with former offenders. He discussed the stigma associated with being a former offender and all of the burdens experienced by these offenders in terms of reintegrating into society. He responded to questions from the committee about redemption and retribution.

03:26 PM -- Carol Peeples, Colorado Criminal Justice Reform Coalition, spoke in support of the bill. Ms. Peeples discussed the disenfranchisement of former offenders. She spoke about the complexity of the various sentencing options in Colorado and the current statute that controls who can vote and who cannot. Individuals who are under direct sentence to a halfway house, but are nonresidential, are in a gray area concerning their right to vote. She clarified how the Secretary of State and the Department of Corrections communicate regarding offenders who are registered to vote, but do not have the right to vote. Ms. Peeples addressed several questions raised during prior testimony. She expressed her disappointment that the bill has become political and partisan. She responded to questions from the committee.

03:44 PM -- Ty Gee, Colorado Criminal Justice Reform Coalition, spoke in support of the bill. Mr. Gee distributed a written statement (Attachment E) and a copy of a 2006 Colorado Supreme Court Case, Danielson v. Dennis (Attachment F). He discussed the status of parolees in regards to voting rights conferred by the Colorado constitution, which was adopted 23 years before Colorado enacted a law concerning parole. Mr. Gee and Representative Gardner discussed constitutional law.

03:51 PM -- Mark Silverstein, American Civil Liberties Union (ACLU) Colorado, spoke in support of the bill. Mr. Silverstein discussed the consequences of felony convictions and how states have recently acted to minimize those consequences.

04:00 PM

Representative Weissmann made closing remarks.


BILL:	SB10-179
TIME:	04:09:09 PM
MOVED:	Court
MOTION:	Refer Senate Bill 10-179 to the Committee on Appropriations with a favorable recommendation. Members of the committee commented about their positions on the bill. The motion passed on a vote of 6-4, with 1 excused.
SECONDED:	Pace
		VOTE
	Court	Yes
	Gardner B.	No
	Kagan	Yes
	King S.	No
	Miklosi	Excused
	Nikkel	No
	Pace	Yes
	Ryden	Yes
	Waller	No
	McCann	Yes
	Levy	Yes
Final YES: 6 NO: 4 EXC: 1 ABS: 0 FINAL ACTION: PASS

04:09 PM -- House Resolution 10-1008

Representative Balmer, sponsor, presented House Resolution 10-1008 concerning the support of Colorado Attorney General John Suthers in filing legal action challenging the constitutionality of recently enacted federal health care legislation. He responded to questions from the committee.

04:16 PM -- Ed Kahn, Colorado Center on Law and Policy, spoke in opposition to the resolution. Mr. Kahn discussed his legal credentials. He stated his opinion that it is against the interests of the people of Colorado to try to defeat the mandate portion of the federal health care package signed by President Obama. He talked about other types of situations in which the government has the power to impose a tax for a legitimate purpose. He also discussed the power of the federal government to regulate interstate commerce. He expressed his opinion that the bill amounts to an attempt to roll back the United States Constitution 75 years. Mr. Kahn responded to questions from the committee about possible unfunded mandates as a result of the federal health care legislation.

04:23 PM

Representative Balmer made closing remarks and asked for a favorable recommendation.


BILL:	HR 10-1008
TIME:	04:27:35 PM
MOVED:	Gardner B.
MOTION:	Refer House Resolution 10-1008 to the full House with a favorable recommendation. The motion failed on a vote of 4-6, with 1 excused.
SECONDED:	Waller
		VOTE
	Court	No
	Gardner B.	Yes
	Kagan	No
	King S.	Yes
	Miklosi	Excused
	Nikkel	Yes
	Pace	No
	Ryden	No
	Waller	Yes
	McCann	No
	Levy	No
Not Final YES: 4 NO: 6 EXC: 1 ABS: 0 FINAL ACTION: FAIL


BILL:	HR 10-1008
TIME:	04:28:45 PM
MOVED:	Court
MOTION:	Postpone indefinitely House Resolution 10-1008. The motion passed on a vote of 6-4, with 1 excused.
SECONDED:	Pace
		VOTE
	Court	Yes
	Gardner B.	No
	Kagan	Yes
	King S.	No
	Miklosi	Excused
	Nikkel	No
	Pace	Yes
	Ryden	Yes
	Waller	No
	McCann	Yes
	Levy	Yes
Final YES: 6 NO: 4 EXC: 1 ABS: 0 FINAL ACTION: PASS

04:30 PM -- Senate Bill 10-128

Representative Rice, sponsor, presented Senate Bill 10-128 concerning invasion of privacy. The reengrossed bill moves the offense of invasion of privacy for sexual gratification from the unlawful sexual contact statute to its own statute. The penalty for invasion of privacy for sexual gratification is raised from a class 1 misdemeanor to a class 6 felony when it is the second or subsequent offense or the person observed or photographed is under the age of 15. The definition of a "photograph" for the purpose of invasion of privacy for sexual gratification and criminal invasion of privacy is expanded to include a live feed.

The penalty for the offense of eavesdropping is lowered from a class 6 felony to a class 1 misdemeanor. The sections of the bill pertaining to invasion of privacy for sexual gratification do not take effect until July 1, 2012, and the remaining portions of the bill take effect July 1, 2010.

Representative Rice responded to questions from the committee. Representative Levy distributed prepared amendments L.009 (Attachment G) and L.010 (Attachment H).

04:41 PM -- Doug Wilson, Colorado State Public Defender, spoke in opposition to the bill. Mr. Wilson noted that the bill does not make a distinction between adult and juvenile offenders. Both would have to register as sex offenders. He discussed the current penalty levels for possession of private photographs and how the bill's penalty provisions differ from each other. He stated that the bill's provisions will make it difficult for defendants to disprove that their acts were not for sexual gratification. He further responded to questions from Representative Levy regarding how the elements of a crime involving a live feed could be proved.

04:55 PM -- Leslie Krueger-Pagett, representing herself, and Kim Dvorchak, representing the Colorado Juvenile Defender Coalition, spoke in opposition to the bill. Ms. Krueger-Pagett spoke to the effect of the bill on juveniles. She expressed her concerns about the broadness of the bill. Ms. Dvorchak discussed the new trend of "sexting," which could potentially be prosecuted under the provisions of the bill. She continued to talk about the effect of the bill on juveniles. She stated that juveniles are not entitled to a trial in misdemeanor cases. She reiterated Ms. Krueger-Pagett's concerns about the broadness of the bill. Ms. Dvorchak and Ms. Krueger-Pagett responded to questions from the committee.

05:14 PM -- Erin Jemison, Colorado Coalition Against Sexual Assault, spoke in support of the bill. Ms. Jemison stated her opinion that the bill provides clarity and allows invasion of privacy and voyeurism to be treated as serious incidents. She argued that these situations are often part of a continuum, rather than isolated incidents. She discussed the trauma experienced by victims of voyeurism. Ms. Jemison stated that the bill provides another tool to hold sex offenders accountable. She responded to questions from the committee.

05:22 PM -- Amy Ollivier, representing herself, spoke in support of the bill. Ms. Ollivier shared her personal experience as a victim of voyeurism.

05:26 PM -- Tom Hill, County Sheriffs of Colorado, spoke in support of the bill. Mr. Hill stated that the sheriffs support the version of the bill that came out of the Senate.

05:32 PM -- Jan Lucas, Colorado Hotel and Lodging Association, spoke in support of the bill. Ms. Lucas spoke about her concern with protecting the safety and security of hotel and lodging guests.

05:36 PM -- Mark Randall, CDAC, spoke in support of the bill. Mr. Randall discussed current law that addresses voyeurism and the history of the state's "peeping tom" laws. He talked about the need for adding a live feed to law because law enforcement cannot prove what a perpetrator observed over a live feed. Mr. Randall responded to extensive questioning from the committee about current law and the prosecution of sex offenders.

05:58 PM

Mr. Randall and the committee continued to discuss the effects of the bill.


BILL:	SB10-128
TIME:	06:07:58 PM
MOVED:	Levy
MOTION:	Adopt prepared amendment L.010 (Attachment H). The motion passed without objection.
SECONDED:	Court
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi	Excused
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection

06:10 PM

Members of the committee discussed their positions on the bill.


BILL:	SB10-128
TIME:	06:17:59 PM
MOVED:	Court
MOTION:	Refer Senate Bill 10-128, as amended, to the Committee of the Whole with a favorable recommendation. The motion passed on a vote of 9-1, with 1 excused.
SECONDED:	McCann
		VOTE
	Court	Yes
	Gardner B.	Yes
	Kagan	Yes
	King S.	Yes
	Miklosi	Excused
	Nikkel	Yes
	Pace	No
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes
Final YES: 9 NO: 1 EXC: 1 ABS: 0 FINAL ACTION: PASS

06:18 PM -- Senate Bill 10-012

Representative Pace, sponsor, presented Senate Bill 10-012 concerning increased penalties for violations of the workers' compensation laws. The reengrossed bill increases the maximum penalty for violating workers' compensation laws from $500 to $1,000 per day of violation. It lowers the standard for determining when benefits are wrongfully withheld by an insurer or self-insured employer from acting "willfully" to "knowingly". Under current law, 75 percent of a penalty is paid to the injured worker and 25 percent to the Subsequent Injury Fund. Under SB10-012, penalties will be apportioned at the discretion of the director of the Division of Workers' Compensation or an administrative law judge between the injured worker who will receive a minimum of 50 percent, and the Workers' Compensation Cash Fund.

The Subsequent Injury Fund (SIF) was established in 1945 to encourage employers to hire persons with pre-existing work-related disabilities, especially veterans who had been seriously injured during World War II. The SIF accomplished this by eliminating the liability of a current employer for the continuing effects of an employee's preexisting work-related injury. The SIF is closed to new claims but continues to pay benefits on existing claims. The SIF is primarily funded through the workers' compensation insurance premium surcharge but receives 25 percent of the approximately $240,000 of penalties collected for violation of workers' compensation law which equals about $60,000 per year.

Representative Pace distributed a written statement from Mark Simon (Attachment I) and responded to questions from the committee.

06:23 PM -- Representative Mike Cerbo, Colorado AFL-CIO, spoke in support of the bill. Representative Cerbo discussed the prompt payment of workers' compensation benefits. He spoke about the difference between "knowingly" and "willfully" with regard to intent. He asked the committee not to adopt an amendment that would create a "wrongfully" standard.

06:26 PM -- Frank Cavanaugh, Colorado Self-insured Association, spoke in opposition to the bill. Mr. Cavanaugh discussed his credentials as a workers' compensation lawyer. He talked about current law with regard to penalties for violations of workers' compensation laws. He stated his opinion that the bill will increase litigation. He talked about things that would be considered a willful violation rather than a knowing violation. Mr. Cavanaugh responded to questions from the committee.

06:44 PM -- Harvey Flewelling, Pinnacol Assurance, spoke in opposition to the bill. Mr. Flewelling reiterated the testimony of the prior witness and addressed committee questions.

06:49 PM

The committee continued to discuss the bill and possible amendments for second reading.


BILL:	SB10-012
TIME:	06:50:24 PM
MOVED:	Pace
MOTION:	Refer Senate Bill 10-012 to the Committee of the Whole with a favorable recommendation. The motion passed on a vote of 6-4, with 1 excused.
SECONDED:	Ryden
		VOTE
	Court	Yes
	Gardner B.	No
	Kagan	Yes
	King S.	No
	Miklosi	Excused
	Nikkel	No
	Pace	Yes
	Ryden	Yes
	Waller	No
	McCann	Yes
	Levy	Yes
Final YES: 6 NO: 4 EXC: 1 ABS: 0 FINAL ACTION: PASS

06:51 PM

Representative Levy adjourned the committee.