House Committee on Judiciary (03/15/2010)

Final
STAFF SUMMARY OF MEETING

HOUSE COMMITTEE ON JUDICIARY

Date:	03/15/2010	ATTENDANCE

Time:	01:35 PM to 03:48 PM	Court	X
		Gardner B.	X
Place:	HCR 0107	Kagan	X
		King S.	*
This Meeting was called to order by		Miklosi	*
	Representative Levy	Nikkel	X
		Pace	X
This Report was prepared by		Ryden	X
	Jessika Shipley	Waller	X
		McCann	X
		Levy	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
SB10-130 SB10-063 HB10-1094		Referred to the Committee of the Whole Referred to the Committee of the Whole Postponed Indefinitely

01:36 PM -- Senate Bill 10-130

Representative McCann, sponsor, presented Senate Bill 10-130 concerning the allocation of powers within the Department of Corrections (DOC). This bill clarifies that the executive director of the DOC, and not the director of the Division of Adult Parole in the DOC, supervises and controls the state's correctional facilities. Additionally, the DOC, and not the Division of Parole in the former Department of Institutions, supervises and controls all honor camps, work release programs, and other adult correctional programs.

01:37 PM -- Alison Morgan, DOC, spoke in support of the bill. Ms. Morgan explained the reasons the department asked for the bill to be drafted. It closes a loophole that has caused occasional problems, especially in personnel actions. Ms. Morgan responded to questions from the committee.


BILL:	SB10-130
TIME:	01:39:33 PM
MOVED:	McCann
MOTION:	Refer Senate Bill 10-130 to the Committee of the Whole 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.	Excused
	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

01:40 PM -- Senate Bill 10-063

Representative Waller, sponsor, presented Senate Bill 10-063 concerning limiting civil liability for attorneys who contract to provide certain services for the Office of the Alternate Defense Counsel (OADC). The bill, as amended by the Senate, provides protections for OADC attorneys from certain lawsuits filed by clients. The complainant is required to file a certificate of review with the court declaring that the attorney for the plaintiff has consulted a person with expertise in the area of the alleged negligent conduct and the professional has reviewed the known facts and concluded that the filing of the claim does not lack substantial justification.

The Attorney General is required to provide representation for the contract attorneys between the time of the service of the complaint until a certificate of review is filed. If the OADC determines that the act or omission that is the basis of the claim did not occur during the performance of the attorney's contractual duties, the office may inform the attorney and the Attorney General of that determination and the Attorney General will not represent the attorney. If the Attorney General does represent the contract attorney and the court determines that the act or omission that is the basis of the claim did not occur during the performance of the attorney's contractual duties, the court will order the contract attorney to reimburse the Office of the Attorney General for reasonable costs and attorney fees. Unless a certificate of review is filed in a timely manner, the contract attorney's malpractice insurance coverage carrier may not consider the claim in determining the amount of future premiums for that attorney.

01:45 PM -- Shawna Geiger, OADC, spoke in support of the bill. Ms. Geiger explained the reasons for offering a strike below amendment in the Senate. She distributed a fact sheet about the bill (Attachment A). Lawsuits against OADC attorneys are extremely rare (11 lawsuits in 13 years), but when such suits are filed, they create problems for the attorneys. The OADC wants to be able to offer certain protections for contract attorneys as an incentive. She explained the purpose of certificates of review and indicated that certificates could not be filed in cases that were found to be meritless. Ms. Geiger stated that the bill allows legitimate malpractice claims to move forward, which is the reason the Senate Judiciary Committee wanted the strike below amendment they adopted. She indicated that the Office of the Attorney General testified in the Senate Judiciary Committee that the reengrossed bill will not have a fiscal impact to the Department of Law. She responded to questions from the committee.

01:55 PM -- Lindy Frolich, OADC, spoke in support of the bill. Ms. Frolich discussed the rates paid to OADC contract attorneys and incentives that may be offered to those attorneys. She responded to committee comments about malpractice insurance deductibles and policy rates.

01:58 PM

Representative Waller clarified that, while he has worked as a contract attorney for the OADC in the past, he has cut all ties with the office and does not have a conflict of interest with regard to the bill.


BILL:	SB10-063
TIME:	01:59:14 PM
MOVED:	Waller
MOTION:	Refer Senate Bill 10-063 to the Committee of the Whole with a favorable recommendation. The motion passed on a vote of 11-0.
SECONDED:	Gardner B.
		VOTE
	Court	Yes
	Gardner B.	Yes
	Kagan	Yes
	King S.	Yes
	Miklosi	Yes
	Nikkel	Yes
	Pace	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes
Final YES: 11 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS

02:00 PM -- House Bill 10-1094

Representative C. Gardner, prime sponsor, presented House Bill 10-1094 concerning the use of deadly physical force against a person who makes an illegal entry into a place of business. Under existing law, an individual is justified in using deadly force against another person if the other person has unlawfully entered the individual's dwelling and the individual believes that the other person has committed a crime or intends to commit a crime and may use physical force against the occupant of the dwelling. Any use of physical or deadly force by the occupant in this situation is immune from prosecution.

This bill expands that law to provide immunity to an owner, manager, or an employee who uses deadly force against another person in a place of business under the same circumstances. It also provides immunity for individuals to use deadly force if it is necessary to prevent another person, who is unlawfully trespassing, from committing first degree arson.

Representative C. Gardner responded to questions about whether the bill is about immunity or self-defense. The committee discussed the language of the bill pertaining to the use of deadly physical force.

02:18 PM -- Chief Dan Brennan, Colorado Association of Chiefs of Police, spoke in opposition to the bill. Chief Brennan stated his opinion that the bill goes too far in allowing deadly physical force for a place of business. He talked about existing law that allows reasonable physical force in the defense of one's person or property. He spoke about situations that do not require deadly physical force involving a trespass. Chief Brennan responded to questions from the committee about the reasonable belief that a trespasser means to do physical harm to one or more individuals. The committee discussed unlawful entry and the use of force at length.

02:43 PM -- Amy Miller, Colorado Coalition Against Domestic Violence, spoke in opposition to the bill. Ms. Miller expressed concerns that the standard of justified use of deadly force in the bill is far too low. She discussed circumstances that could occur in domestic violence cases where a victim is invited to a home or business, only to have deadly force used against the victim. Ms. Miller responded to questions from the committee about the use of deadly force in domestic violence situations.

02:52 PM -- Mark Randall, Colorado District Attorneys' Council, spoke in opposition to the bill. Mr. Randall stated that some district attorneys support the bill, but the majority of the council opposes it. He provided a lengthy explanation of the current "make my day" law and how the bill fits with existing statute. He addressed questions raised by members of the committee. He expressed concerns with the lack of specificity of the definitions in the bill. Mr. Randall responded to questions from the committee about the use of the "make my day" defense. The committee discussed the reasoning process that may occur when making a determination about whether deadly force is imminent.

03:29 PM -- Sheriff Jim Alderden, County Sheriffs of Colorado, spoke in support of the bill. Sheriff Alderden discussed the history of the "make my day" law. He spoke to the need for legal protection, both criminal and civil, for business owners. He talked about his experience as a police officer dealing with the threat of deadly force. He responded to questions from the committee.

03:36 PM -- Bob Edmiston, Firearms Coalition of Colorado, spoke in support of the bill. Mr. Edmiston distributed two handouts concerning gun control research to the committee (Attachments B and C). He spoke about the deterrent effect of firearms on the commission of crimes. He expressed his opinion that the bill clarifies current law in important ways. He discussed the information contained in the two handouts. Mr. Edmiston responded to questions from the committee about training required to obtain a concealed carry permit.

03:42 PM

Representative C. Gardner provided closing remarks. He responded to questions from the committee.


BILL:	HB10-1094
TIME:	03:47:37 PM
MOVED:	King S.
MOTION:	Refer House Bill 10-1094 to the Committee of the Whole with a favorable recommendation. The motion failed on a vote of 5-6.
SECONDED:	Nikkel
		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:	HB10-1094
TIME:	03:48:21 PM
MOVED:	Kagan
MOTION:	Postpone indefinitely House Bill 10-1094. 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

03:48 PM

Representative Levy adjourned the committee.