Senate Committee on Judiciary (05/04/2012)

Final
STAFF SUMMARY OF MEETING

SENATE COMMITTEE ON JUDICIARY

Date:	05/04/2012	ATTENDANCE

Time:	04:53 PM to 08:34 PM	Giron	*
		King S.	*
Place:	SCR 356	Lundberg	E
		Nicholson	X
This Meeting was called to order by		Roberts	X
	Senator Carroll	Guzman	X
		Carroll	X
This Report was prepared by
	Hillary Smith
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
HB12-1101 SB12-071 HB12-1263 HB12-1325 HB12-1346		Postponed Indefinitely Amended, Referred to Appropriations Amended, Referred to the Committee of the Whole Amended, Referred to Appropriations Referred to the Committee of the Whole

04:56 PM -- House Bill 12-1101

Senator Carroll, sponsor, called the meeting to order. She apologized for the wait and discussed the committee's agenda. The committee recessed briefly, then came back to order.

Senator S. King, sponsor, presented House Bill 12-1101. The bill clarifies statutory language describing the criminal offense of identity theft. To commit identity theft, an individual need not be aware that the personal identifying information, financial identifying information, or financial device belongs to another person.

Background. On October 25, 2010, the Colorado Supreme Court issued an opinion in the case of Montes-Rodriguez v. People, in which the court determined that an individual must know that he or she is using another person's personal identifying information, financial identifying information, or a financial device to be guilty of criminal impersonation. Prior to this ruling, district attorneys were prosecuting criminal impersonation and identity theft cases based on the assumption that the defendant did not need to be aware that he or she was using identifying information that belonged to a different person. House Bill 12-1101 aligns state law with district attorney practices prior to October 25, 2010.

The following individuals testified regarding the bill:

04:58 PM -- Mr. Ted Vidimos, representing himself, testified in support of the bill. He discussed his experience as a victim of identity theft. He said that the bill has nothing to do with race or immigration.

04:59 PM -- Ms. Jamie Valdez, representing her husband Mr. Eddie Valdez, testified in support of the bill. Ms. Valdez explained that her husband has a traumatic brain injury and is a victim of identity theft. She spoke about the effect of the identity theft on her family.

05:03 PM -- Mr. Eddie Valdez, representing himself, testified in support of the bill. He spoke about his experience as a victim of identity theft. He explained the difficulties of trying to prove who he is.

05:05 PM -- First Judicial District Attorney Scott Storey, representing himself, testified in support of the bill. He provided background on the need for the bill and the Colorado Supreme Court decision in Montes-Rodriguez v. People. He distributed two letters in support of the bill (Attachments A and B). He spoke about culpable mental states. Mr. Storey shared anecdotes concerning victims of identity theft. He stated that the bill creates a deterrence for identity theft. He continued to list the benefits of the bill. He said that the bill corrects a drafting error.

05:14 PM -- Mr. Tom Raynes, representing the Colorado District Attorneys' Council, testified in support of the bill. He expanded on Mr. Storey's comments concerning the Colorado Supreme Court decision. He said that identity theft is a victim-driven crime that impacts victims for decades. He listed the benefits of the bill.

05:17 PM -- Mr. Michael Dougherty, representing the Office of the Attorney General, testified in support of the bill. He said that identity theft can have a tremendous impact on individuals in Colorado and is very difficult to correct. He stated that Colorado ranks first in fraud and eleventh in identity theft. He said that Greeley, Colorado Springs, Boulder, and Fort Collins are among the top cities in the nation for fraud.

05:22 PM

Senator Guzman referred to information in the fiscal note concerning the number of identity theft cases that have been filed between 2009 and 2011. Mr. Storey said that prosecutors don't use the identity theft law because of flaws in the way the statute is written. He said that identity theft is a property crime, so a first time offender generally will not get prison time. He spoke about the use of fines in criminal sentencing.

05:24 PM

Senator Carroll asked for additional information concerning language on page 3, lines 6 through 8, concerning strict liability. Discussion ensued between Senator Carroll and Mr. Storey, with Mr. Raynes weighing in as well.

05:28 PM

Senator Nicholson sought clarification concerning the problems with the statute as currently written for prosecutors. She also asked about a drafting decision on page 2 of the bill concerning the term "knowingly." Mr. Storey responded to her questions, as did Mr. Raynes.

05:31 PM -- Ms. Mary Claire Mulligan, representing the Colorado Criminal Defense Bar, testified in opposition to the bill. She expressed her concerns with the language in the bill concerning strict liability. She spoke about mens rea as an element of a crime. She described a U.S. Supreme Court decision in Flores-Figueroa v. United States. She said the bill punishes criminal impersonation, a class 6 felony, at a higher level by making it identity theft. Ms. Mulligan said that there is a strong reason for having strict liability for sex crimes concerning children. She concluded her remarks by stating that there is no evidence that even the death penalty deters crime, so a change in the identity theft statute is unlikely to have a deterrent effect.

05:39 PM -- Mr. Justin Valas, representing the Colorado Immigrant Rights Coalition, testified in opposition to the bill. He said that the bill will increase costs and will be detrimental to justice.

05:40 PM -- Ms. Stacey Fichtel, representing the American Friends Service Committee, testified in opposition to the bill. She described the mission of her organization. She expressed concern that the bill will detrimentally affect women and men who are working to feed their families and earn a better life. She referred to the immigration system as "broken." She spoke about services provided to undocumented immigrants and the taxes paid by those individuals. Ms. Fichtel discussed the costs to the state for prosecuting a non-violent crime. She referred to the fiscal note for the bill. She said that her organization does not support the use of private prisons.

05:45 PM -- Mr. Bob Norris, representing himself, testified in opposition to the bill. He said that the Boulder County Commissioners' legislative staff asked him to express their opposition to the bill. He spoke about his experience in the nonprofit sector helping people on both sides of this issue. He agreed with previous witnesses' objections to the bill.

05:47 PM

Senator S. King provided closing remarks in support of the bill. He said that victims of identity theft are very much like at-risk victims such as seniors and children because victims of identity theft cannot defend themselves. He stated that Colorado needs to be proactive to address identity theft, which he referred to as "the crime of the future."


BILL:	HB12-1101
TIME:	05:48:59 PM
MOVED:	King S.
MOTION:	Refer House Bill 12-1101 to the Committee on Appropriations. The motion failed on a vote of 2-4, with one member excused.
SECONDED:
		VOTE
	Giron	No
	King S.	Yes
	Lundberg	Excused
	Nicholson	No
	Roberts	Yes
	Guzman	No
	Carroll	No

Not Final YES: 2 NO: 4 EXC: 1 ABS: 0 FINAL ACTION: FAIL


BILL:	HB12-1101
TIME:	05:50:07 PM
MOVED:	Carroll
MOTION:	Postpone House Bill 12-1101 indefinitely using a reversal of the previous roll call. There was no objection to the use of the reverse roll call, therefore, the motion to postpone House Bill 12-1101 indefinitely passed on a vote of 4-2, with one member excused.
SECONDED:
		VOTE
	Giron	Yes
	King S.	No
	Lundberg	Excused
	Nicholson	Yes
	Roberts	No
	Guzman	Yes
	Carroll	Yes

Final YES: 4 NO: 2 EXC: 1 ABS: 0 FINAL ACTION: PASS

05:50 PM -- Senate Bill 12-071

Senator Giron, sponsor, presented Senate Bill 12-071. Prior to initiating or completing the process of foreclosing on residential real property containing four or fewer dwelling units, the bill requires the holder of an evidence of debt to make and fully document its efforts to:

• contact the borrower directly;
• fully assess the eligibility of the borrower, the property, and the loan for any available public or private loan modification programs or other foreclosure alternatives;
• pursue and place the borrower in foreclosure alternatives if the borrower is eligible and the holder's interests can be protected;
• communicate with, and inform, the borrower about impending deadlines and the consequences of missing them at every major step of the foreclosure process;
• provide specific information to the borrower regarding eligibility for foreclosure alternatives and any determination regarding the borrower's foreclosure status; and
• abide by the terms of any offer of modification it makes, if the borrower signs and returns documents containing those terms.

A borrower has until seven business days before a scheduled foreclosure sale to submit a foreclosure alternatives application packet. After making such application, the borrower may dispute the outcome of the holder's review.

The bill also requires the state (through the Department of Local Affairs) to publish a standardized notice to initiate the foreclosure alternatives process.

05:51 PM

Senator Giron provided statistics concerning foreclosure. She said that choices concerning loan modifications and refinancing have a large effect on the economy. She said the current system is biased toward foreclosure sales. She spoke about the number of foreclosures in Colorado and in her community.

The following individuals testified regarding the bill:

06:00 PM -- Ms. Sara Mobley, representing herself, testified in support of the bill. She spoke about her experience as an attorney in this field. She said that the bill ensures that servicers are held accountable. Ms. Mobley listed the benefits of the bill.

06:06 PM -- Mr. Dennis Obduskey, representing himself, testified in support of the bill. He discussed his experience trying to get his mortgage modified. He distributed copies of his testimony to the committee, along with a handout concerning the timeline of his actions (Attachments C and D, respectively). He walked the committee through the steps that he took in an attempt to modify his mortgage.

06:16 PM

Mr. Obduskey responded to questions from Senator Carroll concerning how Senate Bill 12-071 would help homeowners like him. He responded to further questions from Senator Guzman.

06:19 PM -- Mr. Leonard McWilliams, representing himself, testified in support of the bill. He explained that his home loan was constantly sold or transferred to other businesses. He explained the effect of this situation on his family.

06:22 PM -- Ms. Sharon McKee, representing herself, testified in support of the bill. She spoke about her experience attempting to modify her mortgage. She explained that her family now lives day to day. Ms. McKee said that America has become a country of haves and have-nots. She discussed the housing bubble and actions by large banks.

06:32 PM -- Ms. Corrine Fowler, representing the Colorado Progressive Coalition, testified in support of the bill. She said that people call her organization every day to talk about problems with foreclosures. She said that problems with foreclosures are what is keeping the economy from recovering. Ms. Fowler displayed a map of foreclosures in the Denver-metro area over a three-month period. She explained the benefits of the bill. She distributed a handout to the committee concerning the number of foreclosures that occur while a modification is in process (Attachment E).

06:39 PM

Ms. Fowler moved on to a discussion of a national settlement between banks and attorneys general. She implored the committee to consider ways to help solve foreclosure problems.

06:41 PM -- Ms. Jenifer Waller, representing the Colorado Bankers' Association and the Independent Bankers of Colorado, testified in opposition to the bill. She distributed copies of testimony from the Independent Bankers of Colorado (Attachment F). She said that the bill would lengthen foreclosures. She spoke about Colorado's public trustee system. She walked the committee through objections to specific language in prepared Amendment L.001 (Attachment G), which was distributed to the committee. An unofficial preamended version of the bill was also distributed (Attachment H).

06:51 PM

Senator Carroll asked Ms. Waller to conclude with high-level concerns about the bill. Ms. Waller stated that the bill is impossible to comply with because it requires banks to produce documents that they do not have. She said that the bill could set a borrower up for fraud. Senator Carroll asked Ms. Waller to offer suggestions on how to improve communication between banks and homeowners. Discussion ensued between Ms. Waller and Senator Carroll.

06:59 PM

Ms. Waller responded to questions from Senator Guzman concerning the number of homes in Colorado that have been foreclosed on. Ms. Waller expressed support for helping those who are dealing with foreclosures. She spoke about the Foreclosure Hotline, which was started by private businesses. She discussed the "ostrich effect" that may lead some homeowners to put off working with banks until it is too late.

07:02 PM -- Former Colorado State Representative Frances Coleman, representing the Colorado Mortgage Lenders' Association, testified in opposition to the bill. She spoke about negotiations concerning the bill, and committed to continue to work on foreclosure issues next year. She discussed events that occurred prior to Senator Giron submitting her initial draft of the bill, and how the foreclosure process has changed since then. Ms. Coleman stated that national servicing standards are in the process of being developed. She said that the national settlement with attorneys general addresses "dual-tracking" and financial literacy. Ms. Coleman spoke about all of the groups that have worked on this issue, and more work can be done over the interim.

07:11 PM

Ms. Coleman concluded her remarks by discussing statistics concerning foreclosures in Colorado.

07:14 PM

Senator Giron provided closing remarks on the bill. She spoke about her work on this issue.


BILL:	SB12-071
TIME:	07:17:56 PM
MOVED:	Giron
MOTION:	Adopt prepared Amendment L.001 (Attachment G). The motion passed without objection.
SECONDED:
		VOTE
	Giron
	King S.
	Lundberg	Excused
	Nicholson
	Roberts
	Guzman
	Carroll

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection

07:17 PM

Senator S. King explained his position on the bill. He stated that the federal government should take better steps to address this problem.


BILL:	SB12-071
TIME:	07:18:08 PM
MOVED:	Giron
MOTION:	Refer Senate Bill 12-071, as amended, to the Committee on Appropriations. The motion passed on a vote of 4-2, with one member excused.
SECONDED:
		VOTE
	Giron	Yes
	King S.	No
	Lundberg	Excused
	Nicholson	Yes
	Roberts	No
	Guzman	Yes
	Carroll	Yes

Final YES: 4 NO: 2 EXC: 1 ABS: 0 FINAL ACTION: PASS

07:20 PM -- House Bill 12-1263

Senator Steadman, sponsor, returned to the committee to discuss House Bill 12-1263, concerning reducing barriers to employment by state agencies for individuals with criminal records. The committee heard witness testimony on the bill on Wednesday, April 11. Senator Steadman distributed prepared Amendment L.005 (Attachment I). He walked the committee through its provisions.


BILL:	HB12-1263
TIME:	07:23:46 PM
MOVED:	Carroll
MOTION:	Adopt prepared Amendment L.005 (Attachment I). The motion passed without objection.
SECONDED:
		VOTE
	Giron
	King S.
	Lundberg	Excused
	Nicholson
	Roberts
	Guzman
	Carroll

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB12-1263
TIME:	07:23:59 PM
MOVED:	Carroll
MOTION:	Refer House Bill 12-1263, as amended, to the Committee of the Whole. The motion passed on a vote of 6-0, with one member excused.
SECONDED:
		VOTE
	Giron	Yes
	King S.	Yes
	Lundberg	Excused
	Nicholson	Yes
	Roberts	Yes
	Guzman	Yes
	Carroll	Yes

Final YES: 6 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS

07:25 PM -- House Bill 12-1325

Senator Nicholson, sponsor, presented House Bill 12-1325. Current law prohibits stores from selling and individuals from purchasing more than 3.6 grams of any methamphetamine precursor drug or combination of methamphetamine precursor drugs in a 24-hour period. The bill changes the relevant sale period from 24 hours to one calendar day. It also adds a prohibition against the sale or purchase of more than 9 grams of methamphetamine precursor drugs within a 30-day period.

Store employees are required to check the photo identification of individuals buying nonprescription methamphetamine precursor drugs and log each sale. Beginning January 1, 2013, stores will be required to submit the information in the log to an electronic logging system prior to making a sale of methamphetamine precursor drugs, assuming the system is available without a charge. The electronic logging system will generate a stop sale alert if the sale would result in the store or purchaser violating the quantity limits. Store employees may not complete a sale if a stop sale alert is generated unless stopping the sale puts the employee in fear of imminent bodily injury. Stores are required to keep a manual log in the event of mechanical failure and submit the information in the manual log to the electronic logging system as soon as possible.

The bill limits liability for stores using the electronic logging system to those acts that are negligent, reckless, or deliberate misconduct. Stores that do not have more than ten methamphetamine precursor drug transactions in a seven-day period are exempt from the requirement to use the electronic logging system and may, instead, use a handwritten log. Local laws or ordinances regulating the sales of methamphetamine precursor drugs are preempted by the bill. Finally, the bill prohibits an administrator of an electronic logging system from selling, transferring, sharing, or distributing information received through the log for commercial purposes.

07:26 PM

Senator Nicholson explained her reasons for sponsoring the bill. She distributed prepared Amendment L.015 and a memorandum prepared by Legislative Council Staff concerning its effects (Attachments J and K, respectively). Senator Carroll distributed prepared Amendment L.012 (Attachment L).

07:29 PM

Senator Nicholson responded to questions from Senator Carroll.

The following individuals testified regarding the bill:

07:30 PM -- Mr. Carlos Gutierrez, representing the Consumer Healthcare Products Association, testified in support of the bill. He said that his organization takes the possibility of their products being used to manufacture methamphetamine very seriously. He described the benefits of the electronic logging system. He spoke about other states' laws on this issue. Mr. Gutierrez responded to questions from Senator Carroll concerning what foreclosure is offered to purchasers of methamphetamine precursor drugs. Discussion then turned to the vendors for the electronic logging system.

07:38 PM

Mr. Gutierrez responded to questions from Senator Guzman concerning the cost of the legislation.

07:39 PM -- Ms. Annmarie Jensen, representing the Colorado Association of Chiefs of Police and the Drug Investigators' Association, testified in opposition to the bill. She said that simply tracking purchases will have little effect, because methamphetamine dealers often use fake identification cards. She said that methamphetamine labs increased in some states that adopted similar legislation. Ms. Jensen expressed the view that state agency oversight over the database is critical to its success. She spoke about how the amendment would affect state oversight. She responded to previous questions concerning law enforcement access to the paper logs that are kept under current law. She said that law enforcement would prefer to stop purchases of methamphetamine precursor drugs rather than review purchases that have already occurred. Ms. Jensen encouraged the committee to adopt an amendment to interface the electronic logging system with the Colorado Crime Information Center (CCIC) system.

07:46 PM -- Ms. Marla Frawner, representing the Colorado Retail Council and King Soopers, testified regarding the bill. She explained that she is a pharmacist. She said that King Soopers stores are phasing in an electronic system in its pharmacies. She described the benefits if all Colorado pharmacies had an electronic logging system. She listed the benefits of the bill. Senator Carroll asked Ms. Frawner how long pharmacies keep data collected from scanned identification cards. Discussion continued concerning notice given to purchasers of methamphetamine precursor drugs, with Senator Roberts weighing in as well.

07:53 PM -- Ms. Shannon Butler, representing the Colorado Retail Council, Johnson & Johnson, Pfizer, and Rx Plus Pharmacies, testified in support of the bill.

07:55 PM -- Mr. Jim Acquisto, representing Appriss, Inc., testified in support of the bill. He described the advantages of an electronic logging system over paper logs. He spoke about his work building a real-time electronic system that blocks illegal sales. Mr. Acquisto stated that in other states, electronic logging systems have helped law enforcement stop the production of methamphetamines. He emphasized the security and reliability of the electronic logging system.

08:03 PM

Mr. Acquisto responded to questions from Senator Carroll about the number of vendors who sell products similar to his company's. In response to further questions, he said that federal law requires records to be retained for at least two years, and after that they obey state laws concerning whether records need to be destroyed. Senator Carroll asked if a subpoena or warrant is required before law enforcement can search the database. Senator Guzman asked what would be required to make methamphetamine precursor drugs available only by prescription. Discussion continued.

08:09 PM

Senator Carroll asked why records concerning medications that are purchased legally should be kept indefinitely and be available to law enforcement without probable cause. Mr. Acquisto spoke about prescription drug abuse. He said that people do not want to get a prescription before buying drugs such as Sudafed. Senator Carroll spoke about other legal products that could be used to manufacture illegal products such as drugs or bombs. Discussion ensued.

08:15 PM

Senator Nicholson explained prepared Amendment L.015 (Attachment J). She responded to questions from Senator S. King about language in the amendment concerning an oral notification. Senator Roberts said that she is already notified when she buys allergy drugs. Committee discussion continued.


BILL:	HB12-1325
TIME:	08:24:10 PM
MOVED:	Carroll
MOTION:	Adopt an amendment to prepared Amendment L.015: Page 1, line 23, strike "orally". The motion passed without objection.
SECONDED:
		VOTE
	Giron
	King S.
	Lundberg	Excused
	Nicholson
	Roberts
	Guzman
	Carroll

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB12-1325
TIME:	08:24:39 PM
MOVED:	Nicholson
MOTION:	Adopt prepared Amendment L.015 (Attachment J), as amended. The motion passed without objection.
SECONDED:
		VOTE
	Giron
	King S.
	Lundberg	Excused
	Nicholson
	Roberts
	Guzman
	Carroll

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB12-1325
TIME:	08:25:21 PM
MOVED:	Carroll
MOTION:	Adopt an amendment to the reengrossed bill: Page 4, line 17, strike "be immune". Page 4, line 18, strike "from liability" and substitute "not be civilly liable". The motion passed without objection.
SECONDED:
		VOTE
	Giron
	King S.
	Lundberg	Excused
	Nicholson
	Roberts
	Guzman
	Carroll

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB12-1325
TIME:	08:28:00 PM
MOVED:	Carroll
MOTION:	Adopt prepared Amendment L.012 (Attachment L). Senator Carroll and Senator S. King discussed the amendment. The motion failed on a 3-3 vote, with one member excused.
SECONDED:
		VOTE
	Giron	Yes
	King S.	No
	Lundberg	Excused
	Nicholson	No
	Roberts	No
	Guzman	Yes
	Carroll	Yes

YES: 3 NO: 3 EXC: 1 ABS: 0 FINAL ACTION: TIE


BILL:	HB12-1325
TIME:	08:29:47 PM
MOVED:	Nicholson
MOTION:	Refer House Bill 12-1325, as amended, to the Committee on Appropriations. The motion passed on a vote of 5-1, with one member excused.
SECONDED:
		VOTE
	Giron	Yes
	King S.	Yes
	Lundberg	Excused
	Nicholson	Yes
	Roberts	Yes
	Guzman	Yes
	Carroll	No

Final YES: 5 NO: 1 EXC: 1 ABS: 0 FINAL ACTION: PASS

08:30 PM -- House Bill 12-1346

Senator S. King, sponsor, presented House Bill 12-1346. Current law requires sex offenders to register with local law enforcement agencies in the jurisdictions where they reside. The bill establishes a system for the registration of sex offenders who lack a fixed residence. Offenders who lack a fixed residence are required to verify their registration information with the local law enforcement agency in their jurisdiction every one or three months, depending on the offender's registration status. The bill creates a new unclassified misdemeanor for individuals who fail to verify their location as a sex offender, punishable by up to one year in a county jail. Such individuals may not be sentenced to probation and are not subject to various pre-sentence investigations and evaluations.

Beginning July 1, 2012, and ending January 1, 2015, the Colorado Bureau of Investigation (CBI) and local law enforcement agencies, subject to available resources, are required to report every six months to the Department of Public Safety (DPS) on the number of individuals who registered without a fixed residence. By March 31, 2015, the DPS is required to assess the effectiveness of the registration system for those sex offenders who lack a fixed residence.

08:31 PM

Senator S. King responded to questions from Senator Carroll regarding the bill. He explained that the bill, which is recommended by the Colorado Commission on Criminal and Juvenile Justice, establishes a system of registration for offenders who lack a fixed address.

The following individual testified regarding the bill:

08:32 PM -- Ms. Annmarie Jensen, representing the Colorado Association of Chiefs of Police, testified regarding the bill.


BILL:	HB12-1346
TIME:	08:33:59 PM
MOVED:	King S.
MOTION:	Refer House Bill 12-1346 to the Committee of the Whole. The motion passed on a vote of 6-0, with one member excused.
SECONDED:
		VOTE
	Giron	Yes
	King S.	Yes
	Lundberg	Excused
	Nicholson	Yes
	Roberts	Yes
	Guzman	Yes
	Carroll	Yes

Final YES: 6 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS

08:34 PM

The committee adjourned.