House Committee on Judiciary (02/25/2010)

Final
STAFF SUMMARY OF MEETING

HOUSE COMMITTEE ON JUDICIARY

Date:	02/25/2010	ATTENDANCE

Time:	01:37 PM to 05:41 PM	Court	X
		Gardner B.	X
Place:	HCR 0107	Kagan	*
		King S.	X
This Meeting was called to order by		Miklosi	X
	Representative Levy	Nikkel	X
		Pace	*
This Report was prepared by		Ryden	*
	Jessika Shipley	Waller	X
		McCann	X
		Levy	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
HB10-1265 HB10-1239 HB10-1215 HB10-1218 HB10-1168 HB10-1261 HB10-1056		Referred to the Committee of the Whole Committee Vote - Final Action Failed Amended, Referred to Appropriations Amended, Referred to the Committee of the Whole Amended, Referred to the Committee of the Whole Postponed Indefinitely Postponed Indefinitely

01:39 PM -- House Bill 10-1265

Representative Levy made opening remarks about side conversations during public testimony.

01:40 PM

Representative Vigil, prime sponsor, presented House Bill 10-1265 concerning a court's authority to waive certain charges levied against indigent defendants. If a defendant is indigent, the bill clarifies that the court is authorized to waive any costs or surcharges related to costs for victims and witness services that are levied on criminal actions and traffic offenses.

01:41 PM -- Anthony Tilger, Division of Criminal Justice, spoke in support of the bill. Mr. Tilger explained that the bill is simply a technical correction.

01:42 PM -- Peg Ackerman, County Sheriffs of Colorado, spoke in support of the bill.


BILL:	HB10-1265
TIME:	01:43:45 PM
MOVED:	Court
MOTION:	Refer House Bill 10-1265 to the Committee of the Whole with a favorable recommendation. The motion passed on a vote of 9-0, with 2 excused.
SECONDED:	Miklosi
		VOTE
	Court	Yes
	Gardner B.	Yes
	Kagan	Excused
	King S.	Yes
	Miklosi	Yes
	Nikkel	Excused
	Pace	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes
Final YES: 9 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: PASS

01:44 PM -- House Bill 10-1239

Representative Waller, prime sponsor, presented House Bill 10-1239 concerning a requirement that a defendant provide notice of the intent to raise certain statutory defenses. The bill requires a defendant to provide notice if he or she plans to introduce evidence of a mental condition that prevented him or her from having the required mental state for the crime. The court may order an evaluation after the notice is provided. A defendant is also required to provide notice if he or she plans to introduce evidence concerning self-induced intoxication, including the type of substance taken and the name of the practitioner who prescribed the substance. For both the notice of the mental condition and the notice of self-induced intoxication, the defendant is to provide notice at the time of arraignment or at least 30 days prior to the trial.

Representative Waller responded to questions from the committee about the provisions of the bill relating to mental condition or mental state. The committee discussed the rules of discovery. Representative Waller distributed prepared amendments L.001, L.002, and L.003 (Attachments A, B, and C).

02:00 PM -- Mark Randall, Colorado District Attorneys' Council (CDAC), spoke in support of the bill. Mr. Randall discussed the ways the bill will make criminal trials in Colorado more fair. He talked about cases in which mental condition or mental state are raised as part of a defendant's legal defense. He addressed the fiscal note. Mr. Randall spoke about defenses related to intoxication and the intent to commit a crime. The bill requires a defendant to notify the prosecution whether they are claiming voluntary or involuntary intoxication. A successful involuntary intoxication defense will result in complete exoneration for the defendant. Mr. Randall discussed the procedure that would be required under the bill for informing the prosecution of the defenses covered by the bill. He responded to questions from the committee.

02:17 PM -- Doug Wilson, Colorado State Public Defender, spoke in opposition to the bill. Mr. Wilson addressed the fiscal note, which does not reflect the entire amount estimated by his office. He talked at length about the defense of not guilty by reason of insanity. If an individual pleads not guilty by reason of insanity, the prosecution is given access to all medical and mental health records for the entire lifetime of the defendant. He discussed case law on the subject of a culpable mental state. He returned to the issue of the fiscal impact of the bill, which will be high because of vagueness in the bill. He indicated that the bill will apply to any defense that does not require a culpable mental state. Mr. Wilson responded to questions from the committee about the potential meaning of the terms "mental condition" or "mental functioning" in the bill.

02:45 PM -- Mark Hurlbert, 5th Judicial District, spoke in support of the bill. Mr. Hurlbert provided an example of a case he prosecuted in which the defendant stated that he did not have the requisite mental state to commit the crime. He discussed the reasons that the prosecution needs to be informed of the potential defense in a criminal case. He responded to questions from the committee.

02:50 PM -- Peg Ackerman, County Sheriffs of Colorado, spoke in support of the bill.

02:51 PM -- Maureen Cain, Colorado Criminal Defense Bar, spoke in opposition to the bill. Ms. Cain expressed concern about the vagueness of the language in the bill. She discussed rules of discovery in the Colorado Rules of Criminal Procedure. She stated that the bill does not level the playing field, but unfairly burdens the defense. Ms. Cain stressed that the defense is already required to disclose expert witnesses who will speak to a defendant's mental state. She responded to questions from the committee.

02:59 PM -- Geoff Blue, Colorado Attorney General's Office, spoke in support of the bill.

03:03 PM

Representative Levy recessed the committee.

03:09 PM

Representative Levy called the committee back to order. Representative Waller explained prepared amendments L.001, L.002, and L.003.


BILL:	HB10-1239
TIME:	03:10:08 PM
MOVED:	Waller
MOTION:	Adopt prepared amendment L.001 (Attachment A). The motion passed without objection.
SECONDED:	Gardner B.
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1239
TIME:	03:10:29 PM
MOVED:	Waller
MOTION:	Adopt prepared amendment L.002 (Attachment B). The motion passed without objection.
SECONDED:	Gardner B.
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1239
TIME:	03:10:52 PM
MOVED:	Waller
MOTION:	Adopt prepared amendment L.003 (Attachment C). The motion passed without objection.
SECONDED:	Nikkel
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection

03:11 PM

Representative Waller discussed a further amendment that was not prepared ahead of time.


BILL:	HB10-1239
TIME:	03:13:57 PM
MOVED:	Waller
MOTION:	Refer House Bill 10-1239, as amended, to the Committee on Appropriations with a favorable recommendation. The motion failed on a vote of 5-6.
SECONDED:	Gardner B.
		VOTE
	Court	No
	Gardner B.	Yes
	Kagan	No
	King S.	Yes
	Miklosi	No
	Nikkel	Yes
	Pace	No
	Ryden	No
	Waller	Yes
	McCann	Yes
	Levy	No
Not Final YES: 5 NO: 6 EXC: 0 ABS: 0 FINAL ACTION: FAIL


BILL:	HB10-1239
TIME:	03:17:17 PM
MOVED:	Levy
MOTION:	Postpone House Bill 10-1239 until May 20, 2010. The motion failed on a vote of 5-6.
SECONDED:	Ryden
		VOTE
	Court	No
	Gardner B.	No
	Kagan	Yes
	King S.	No
	Miklosi	Yes
	Nikkel	No
	Pace	Yes
	Ryden	Yes
	Waller	No
	McCann	No
	Levy	Yes
Not Final YES: 5 NO: 6 EXC: 0 ABS: 0 FINAL ACTION: FAIL


BILL:	HB10-1239
TIME:	03:18:00 PM
MOVED:	Pace
MOTION:	Postpone House Bill 10-1239 until May 21, 2010. The motion failed for the lack of a second.
SECONDED:
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: TIE

03:19 PM -- House Bill 10-1215

Representative Waller, prime sponsor, presented House Bill 10-1215 concerning the use of cash bond deposits after the discharge of the bond to satisfy outstanding court-ordered debts. Under current law, when a defendant's case is complete, the court clerk is required to return any bond that has been paid to secure the defendant's release. This bill requires the court to use the bond to pay for any court costs that the defendant may owe, including fines, fees, and restitution. If the person who paid the bond is not the defendant, the court may still use the bond to pay for any court costs owed by the defendant if the person who paid the bond agrees in writing to its use.

03:20 PM -- Jeff Clayton, Judicial Department, spoke in support of the bill.

03:21 PM -- Peg Ackerman, County Sheriffs of Colorado, spoke in support of the bill.


BILL:	HB10-1215
TIME:	03:21:56 PM
MOVED:	Waller
MOTION:	Adopt prepared amendment L.001 (Attachment D). The motion passed without objection.
SECONDED:	Gardner B.
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1215
TIME:	03:22:23 PM
MOVED:	Waller
MOTION:	Refer House Bill 10-1215, as amended, to the Committee on Appropriations with a favorable recommendation. The motion passed on a vote of 9-0, with 2 excused.
SECONDED:	Court
		VOTE
	Court	Yes
	Gardner B.	Yes
	Kagan	Yes
	King S.	Yes
	Miklosi	Excused
	Nikkel	Yes
	Pace	Excused
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes
Final YES: 9 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: PASS

03:23 PM -- House Bill 10-1218

Representative Waller, prime sponsor, presented House Bill 10-1218 concerning information in the central registry of protection orders. The bill clarifies that the following information about a protection order or subsequent order should be entered into the central registry of protection orders maintained by the Colorado Bureau of Investigation:

• the amount of bail, if any;
• any conditions of bond set by the court in the case in which the protection order was entered; and
• the highest classified crime charged in the case, if any.

03:24 PM -- Tamar Wilson, CDAC, spoke in support of the bill.

03:28 PM -- Peg Ackerman, County Sheriffs of Colorado, spoke in support of the bill. Ms. Ackerman stated that the sheriffs believe the bill is a matter of officer safety.


BILL:	HB10-1218
TIME:	03:28:41 PM
MOVED:	Waller
MOTION:	Adopt prepared amendment L.001 (Attachment E). The motion passed without objection.
SECONDED:	Court
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1218
TIME:	03:29:48 PM
MOVED:	Waller
MOTION:	Refer House Bill 10-1218, as amended, to the Committee of the Whole with a favorable recommendation. The motion passed on a vote of 10-0, with 1 excused.
SECONDED:	Court
		VOTE
	Court	Yes
	Gardner B.	Yes
	Kagan	Yes
	King S.	Yes
	Miklosi	Excused
	Nikkel	Yes
	Pace	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes
Final YES: 10 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS

03:30 PM -- House Bill 10-1168

Representative Levy returned to discuss House Bill 10-1168, which was originally considered by the committee on February 22, 2010. She distributed prepared amendments L.001, L.005, and L.006 (Attachments F, G, and H). She stated that it is her understanding that the amendments resolve the concerns of the opposition to the bill.


BILL:	HB10-1168
TIME:	03:38:02 PM
MOVED:	Levy
MOTION:	Adopt prepared amendment L.001 (Attachment F), which strikes everything below the enacting clause, as amended. The motion passed without objection.
SECONDED:	Waller
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1168
TIME:	03:38:06 PM
MOVED:	Levy
MOTION:	Adopt prepared amendment L.005 (Attachment G), which amends L.001. The motion passed without objection.
SECONDED:	Gardner B.
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1168
TIME:	03:34:38 PM
MOVED:	Levy
MOTION:	Adopt prepared amendment L.006 (Attachment H). The motion passed without objection.
SECONDED:	McCann
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1168
TIME:	03:43:34 PM
MOVED:	Levy
MOTION:	Refer House Bill 10-1168, as amended, to the Committee of the Whole with a favorable recommendation. Members of the committee commented about their positions on the bill. The motion passed on a vote of 10-0, with 1 excused.
SECONDED:	Gardner B.
		VOTE
	Court	Yes
	Gardner B.	Yes
	Kagan	Yes
	King S.	Yes
	Miklosi	Excused
	Nikkel	Yes
	Pace	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes
Final YES: 10 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS

03:45 PM -- House Bill 10-1261

Representative Bradford returned to continue the discussion of House Bill 10-1261 that began on February 22, 2010. She distributed prepared amendments L.009 and L.010 (Attachments I and J). She referred to prepared amendment L.003 (Attachment K), which was previously distributed.

03:49 PM

Representative Levy recessed the committee.

03:51 PM

Representative Levy brought the committee back to order.


BILL:	HB10-1261
TIME:	04:08:12 PM
MOVED:	Nikkel
MOTION:	Adopt prepared amendment L.003 (Attachment K). Representative Summers explained the amendment. The committee discussed the amendment. Michael Dohr, Office of Legislative Legal Services, appeared to respond to questions. The amendment was amended by a later motion. The motion to adopt L.003, as amended, passed without objection.
SECONDED:	Gardner B.
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1261
TIME:	04:06:59 PM
MOVED:	Gardner B.
MOTION:	Amend prepared amendment L.003: line 7, strike "AND SUBSTITUTE" and strike line 8. The motion passed without objection.
SECONDED:	Kagan
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1261
TIME:	04:03:21 PM
MOVED:	Gardner B.
MOTION:	Amend L.003: line 8, after "WOMAN" insert "CARRYING THE UNBORN CHILD". The motion was withdrawn.
SECONDED:
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: TIE


BILL:	HB10-1261
TIME:	04:09:01 PM
MOVED:	Gardner B.
MOTION:	Adopt prepared amendment L.009 (Attachment I). The motion passed without objection.
SECONDED:	Nikkel
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1261
TIME:	04:10:00 PM
MOVED:	Gardner B.
MOTION:	Adopt prepared amendment L.010 (Attachment J). The motion was withdrawn.
SECONDED:	Nikkel
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy

Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: TIE

04:14 PM

Representative Bradford wrapped up her presentation of the bill. Representative Summers made closing comments.


BILL:	HB10-1261
TIME:	04:34:56 PM
MOVED:	Gardner B.
MOTION:	Refer House Bill 10-1261, as amended, to the Committee on Appropriations with a favorable recommendation. Members of the committee made comments about their positions on the bill. The motion failed on a vote of 5-6.
SECONDED:	Waller
		VOTE
	Court	No
	Gardner B.	Yes
	Kagan	No
	King S.	Yes
	Miklosi	No
	Nikkel	Yes
	Pace	Yes
	Ryden	No
	Waller	Yes
	McCann	No
	Levy	No
Not Final YES: 5 NO: 6 EXC: 0 ABS: 0 FINAL ACTION: FAIL


BILL:	HB10-1261
TIME:	04:35:16 PM
MOVED:	Kagan
MOTION:	Postpone indefinitely House Bill 10-1261. The motion passed on a vote of 6-5.
SECONDED:	Court
		VOTE
	Court	Yes
	Gardner B.	No
	Kagan	Yes
	King S.	No
	Miklosi	Yes
	Nikkel	No
	Pace	No
	Ryden	Yes
	Waller	No
	McCann	Yes
	Levy	Yes
Final YES: 6 NO: 5 EXC: 0 ABS: 0 FINAL ACTION: PASS

04:37 PM -- House Bill 10-1056

Representative Frangas, prime sponsor, presented House Bill 10-1056 concerning the disposal of business records containing personal identifying information. The bill requires every public and private entity in the state that uses paper or electronic documents or records during the course of business that contain personal identifying information to destroy those documents or records prior to disposing of them. Paper documents or records must be shredded. Entities disposing of electronic documents or records are required to erase and render indecipherable and irretrievable all personal identifying information contained in the document or record. Current law identifies "personal identifying information" as:

• a social security number;
• a personal identification number;
• a password;
• a pass code;
• an official state- or government-issued driver's license or identification card number;
• a government passport number;
• biometric data;
• an employer, student, or military identification number; or
• a financial transaction device.

Entities must establish a policy regarding the removal and destruction of personal identifying information during the course of the disposal of documents or records.

A violation of the requirements addressed above is subject to a civil penalty of no more than $500 for each document or record that is not disposed of correctly. The Attorney General or the district attorney in the judicial district where the offense occurs may bring an action to recover the civil penalty, costs, and reasonable attorney fees, as well as to obtain any other remedy, including but not limited to injunctive relief.

Representative Frangas distributed prepared amendment L.010 (Attachment L), which strikes everything below the enacting clause. He discussed the amendment at length. It eliminates the provisions of the bill that relate to electronic records disposal. The civil penalties are capped at $25,000 for a single incident. The amendment makes certain exceptions for theft or the actions of a third party. The committee discussed the strike below amendment. Representative Frangas responded to questions from the committee about the entities covered under the bill.

04:46 PM -- Loren Furman, Colorado Association of Commerce and Industry (CACI), spoke in opposition to the bill. Due to technical difficulties with the audio recording, Ms. Furman's testimony was not recorded.

04:58 PM -- Richard Sweetman, Office of Legislative Legal Services, appeared to respond to questions from the committee about the types of entities that would be covered by the bill.

05:03 PM -- Shayne Madsen, Consumer Data Industry Council, spoke in opposition to the bill. Ms. Madsen distributed a packet of information to the committee (Attachment M). She discussed her concerns with some technical aspects of the bill. Her clients are concerned specifically with federal statutes that deal with creditors, lenders, and others. Ms. Madsen responded to questions from the committee.

05:14 PM -- Sgt. Ryan McGinty, Denver Police Department, spoke in support of the bill. Sgt. McGinty discussed the investigation of identity theft and fraud cases, relating his experience as a police officer.

05:19 PM -- Jack Arrowsmith and Nancy Sotomayor, Colorado County Clerks Association, stated that they are studying the bill.

05:23 PM

Representative Frangas distributed prepared amendments L.011 and L.012 (Attachments N and O). He explained the amendments and wrapped up his presentation of the bill.


BILL:	HB10-1056
TIME:	05:29:18 PM
MOVED:	Court
MOTION:	Adopt prepared amendment L.010 (Attachment L). The motion passed on a vote of 8-1, with 2 excused.
SECONDED:	Levy
		VOTE
	Court	No
	Gardner B.	Yes
	Kagan	Yes
	King S.	Excused
	Miklosi	Excused
	Nikkel	Yes
	Pace	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes
Not Final YES: 8 NO: 1 EXC: 2 ABS: 0 FINAL ACTION: PASS


BILL:	HB10-1056
TIME:	05:31:40 PM
MOVED:	Kagan
MOTION:	Adopt prepared amendment L.012 (Attachment O). The motion passed on a vote of 5-4, with 2 excused.
SECONDED:	Court
		VOTE
	Court	Yes
	Gardner B.	No
	Kagan	Yes
	King S.	Excused
	Miklosi	Excused
	Nikkel	No
	Pace	Yes
	Ryden	Yes
	Waller	No
	McCann	Yes
	Levy	No
Not Final YES: 5 NO: 4 EXC: 2 ABS: 0 FINAL ACTION: PASS


BILL:	HB10-1056
TIME:	05:38:48 PM
MOVED:	Gardner B.
MOTION:	Refer House Bill 10-1056, as amended, to the Committee on Appropriations with a favorable recommendation. Members of the committee commented about their positions on the bill. The motion failed on a vote of 2-7, with 2 excused.
SECONDED:	McCann
		VOTE
	Court	No
	Gardner B.	No
	Kagan	No
	King S.	Excused
	Miklosi	Excused
	Nikkel	No
	Pace	Yes
	Ryden	No
	Waller	No
	McCann	No
	Levy	Yes
Not Final YES: 2 NO: 7 EXC: 2 ABS: 0 FINAL ACTION: FAIL


BILL:	HB10-1056
TIME:	05:39:42 PM
MOVED:	Waller
MOTION:	Postpone indefinitely House Bill 10-1056. The motion passed on a vote of 6-3 with 2 excused.
SECONDED:	Nikkel
		VOTE
	Court	No
	Gardner B.	Yes
	Kagan	Yes
	King S.	Excused
	Miklosi	Excused
	Nikkel	Yes
	Pace	No
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	No
Final YES: 6 NO: 3 EXC: 2 ABS: 0 FINAL ACTION: PASS

05:40 PM

Representative Levy adjourned the committee.