House Committee on Judiciary (03/08/2012)

Final
STAFF SUMMARY OF MEETING

HOUSE COMMITTEE ON JUDICIARY

Date:	03/08/2012	ATTENDANCE

Time:	01:30 PM to 07:47 PM	DelGrosso	*
		Duran	X
Place:	HCR 0107	Kagan	*
		Lee	X
This Meeting was called to order by		Nikkel	X
	Representative Gardner B.	Pabon	X
		Ryden	X
This Report was prepared by		Sonnenberg	X
	Jessika Shipley	Waller	*
		Barker	X
		Gardner B.	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
HB12-1271 HB12-1232 SB12-035 HB12-1232 HB12-1310 HB12-1305		Amended, Referred to Appropriations Postponed Indefinitely Referred to the Committee of the Whole Postponed Indefinitely Amended, Referred to Finance Amended, Referred to the Committee of the Whole

01:32 PM -- House Bill 12-1271

The committee took a brief recess to give the bill sponsors and the opponents a chance to coordinate witness testimony.

01:40 PM

The committee came back to order.

Representative Nikkel, co-sponsor, presented House Bill 12-1271 concerning charging of juveniles by direct file of information or indictment in district court. Under current law, juveniles who are at least 14 years old and who are charged with certain serious crimes may be prosecuted in adult court, a process known as direct filing. This bill raises the minimum age for direct filing to 16. Additionally, it limits the offenses for which a juvenile can be direct filed to class 1 or 2 felonies, violent sex offenses, and crimes of violence committed by prior violent juvenile offenders.

If, after a preliminary hearing, a district (adult) court does not find probable cause for a direct-file-eligible offense, or if such an offense is dismissed at a later date, the court is required to remand the case to the juvenile court. For cases that are direct filed, the juvenile is permitted to file a motion with the district court to transfer his or her case to juvenile court. The district court must hold a reverse-waiver hearing, at which the district attorney is permitted to respond. The bill provides a list of factors the court must consider when deciding whether to transfer a case to juvenile court.

Finally, convictions on charges that are not direct-file-eligible must be remanded to the juvenile court. If a juvenile is sentenced by the juvenile court, his or her conviction will be converted to a juvenile delinquency adjudication, making it subject to the current process for expunging juvenile records.

Representative Nikkel provided opening remarks concerning the history of direct file in Colorado and distributed prepared amendment L.003 (Attachment A).

01:47 PM

Representative McCann, co-sponsor, added her own opening remarks.

01:55 PM -- John Suthers, Colorado Attorney General, testified in opposition to the bill. Attorney General Suthers spoke about the history of teenage violence in Colorado and the United States. He discussed the reasons the current juvenile direct file laws were put into place in 1993. He talked about the effectiveness of the Youthful Offender System (YOS) in the Department of Corrections and discussed several measures of success for the YOS. He indicated that 73 percent of the offenders in the YOS were convicted of a class 3 felony or higher. Attorney General Suthers responded to questions from the committee about other states' laws concerning the prosecution of juvenile offenders.

02:08 PM -- Professor Richard Redding, representing the Colorado Juvenile Defender Coalition, testified in support of the bill. Professor Redding provided a written statement (Attachment B) and a juvenile justice bulletin he authored, which was published by the U.S. Department of Justice Office of Justice Programs in August 2008 (Attachment C). He read from his prepared remarks and responded to questions from the committee about the prosecution and recidivism of juvenile offenders.

02:21 PM -- Mitch Morrissey, Denver District Attorney, testified in opposition to the bill. Mr. Morrissey discussed the history of prosecutorial discretion in direct file cases in Colorado. He expressed his opinion that the current system works and is not being abused. He indicated that the bill establishes a system that will require more litigation and endanger the public. He discussed his support for the YOS. He stated that his office does not direct file as a way to impose longer sentences, but rather as a way to provide proper structure for juvenile offenders. He expressed his concern that the bill will destroy the YOS. He raised concerns about the fiscal note and indicated that it does not accurately represent the costs to the state. Mr. Morrissey provided examples of cases that could not be direct filed under the bill and discussed the victims in those cases. He responded to questions from the committee.

02:45 PM

Discussion continued between Mr. Morrissey and the committee.

02:53 PM -- Kim Dvorchak, representing the Colorado Juvenile Defender Coalition, the Colorado Criminal Defense Bar, and the Colorado State Public Defender, testified in support of the bill. Ms. Dvorchak spoke about the history of juvenile direct file in Colorado. She stated that over 3,000 youthful offenders have been direct filed since 1993 and spoke about the fiscal impact of direct file on the state. She provided statistics about juvenile offenders in the Division of Youth Corrections (DYC) in the Department of Human Services, the YOS, and the adult correctional system. Ms. Dvorchak expressed her opinion that prosecutors in Colorado choose the charge, the court, and the sentence (through plea bargains) without any evaluation by a judge. She discussed a lack of training for YOS staff in terms of working with juveniles and spoke about the different metrics used for measuring recidivism. She stated her opinion that recent changes to the law give defense attorneys the opportunity to beg prosecutors not to direct file and that due process rights are being violated within the current system. She responded to questions from the committee.

03:14 PM

Ms. Dvorchak continued responding to questions from the committee.

03:21 PM -- Don Quick, District Attorney for the 17th Judicial District, testified in opposition to the bill. Mr. Quick distributed a flyer about the Adams County Youth Initiative (Attachment D) and statistics about juvenile direct filing in Colorado (Attachment E). He discussed the handouts and spoke about his focus on kids. He expressed his opinion that the current system works very well for the population it serves. He spoke at length about the successes of YOS. Mr. Quick responded to questions from the committee.

03:36 PM -- Former Speaker of the House Terrance Carroll, representing himself and former Representative Mike May, testified in support of the bill. Speaker Carroll spoke about his experience on the House Judiciary Committee hearing juvenile direct file legislation.

03:43 PM -- Councilman Albus Brooks, representing Denver City Council District 8, testified in support of the bill. Councilman Brooks discussed his experience as a juvenile advocate and stated that "we need to lead out of fact, not out of fear." He stressed the importance of giving judges the right to review the jurisdiction of juvenile direct file cases. He spoke about racial disparity in the correctional system and expressed his opinion that the system is broken for young men of color. Councilman Brooks responded to questions from the committee.

03:52 PM -- Dan May, District Attorney for the 4th Judicial District, testified in opposition to the bill. Mr. May spoke about the success of the YOS system and distributed two handouts concerning the juvenile justice system in Colorado (Attachments F and G). He discussed each handout at length and responded to questions from the committee. Mr. May responded to questions from Representative McCann regarding prosecutions of specific cases involving juveniles and the costs of hearings on transfers.

04:12 PM -- Larry Abrahamson, District Attorney for the 8th Judicial District and President of the Colorado District Attorneys' Council, testified in opposition to the bill. Mr. Abrahamson stated that more time needs to be allotted to evaluating the system, and stated that the system is currently working well. He indicated that the recent drop in the number of direct files shows that district attorneys are making decisions regarding direct filing wisely and with good evidence. He stated that the bill will make Colorado one of the most liberal states in the country in addressing dangerous juvenile offenders.

04:19 PM -- Lisa Pasko, representing herself, testified that allowing prosecutors to direct file does not deter other youthful offenders from committing crimes. Ms. Pasko stated that after the summer of violence in 1993, juvenile crime in Colorado did decline, but juvenile crime declined across the country as a whole. She does not believe it happened as a result of shifting power to prosecutors. She discussed the failure rate of youthful offenders in the YOS. She responded to questions from the committee regarding the deterrent effect of direct file and the decline in juvenile crime.

04:25 PM -- Dr. Richard Swanson, representing himself, testified that the YOS is one of the most effective rehabilitation programs in the United States. Dr. Swanson discussed the tier system used by the YOS and explained how each of the tiers works together to serve the juvenile offender population in the best way possible. He encourage independent periodic review of the YOS and spoke about the original intentions of the creators of the system.

04:35 PM -- Steve Siegel, representing the Colorado Organization for Victim Assistance, testified in opposition to the bill. Mr. Siegel acknowledged that the committee is faced with the task of weighing the needs of crime victims with that of greater community safety and juvenile offenders. He urged the committee to be cautious prior to changing the current system. He responded to questions from the committee.

04:39 PM -- Randy Ratliff, representing the Larimer Center for Mental Health and the Colorado Behavioral Health Council, testified in support of the bill. Mr. Ratliff discussed adolescent brain development and the best environment for addressing criminal behavior by juveniles.

04:43 PM -- Mark Ivandick, representing The Legal Center for People with Disabilities and Older People, testified in support of the bill. Mr. Ivandick stated that he supports the bill because it allows for judicial review of juvenile criminal cases.

04:46 PM -- Michael Lott-Manier, representing Mental Health America of Colorado, testified in support of the bill. Mr. Lott-Manier spoke about the prevalence of serious mental health disorders in juveniles who commit serious crimes. He indicated that youth with mental illness need treatment, rather than the YOS environment. He responded to questions from the committee.

04:51 PM -- Scott Storey, District Attorney for the 1st Judicial District, testified in opposition to the bill. Mr. Storey spoke about his experience with the juvenile justice system. He expressed his opinion that the current system works well and does not need to be fixed. He indicated that district attorneys are being unfairly maligned. He expressed his opinion that DYC is not the proper environment to deal with repeat juvenile offenders and those who commit very serious crimes. He stressed that his office takes every direct file case very seriously. Mr. Storey responded to questions from the committee.

04:59 PM -- Texas Representative Jerry Madden, representing himself, testified in support of the bill. Representative Madden spoke about his experience with criminal justice issues both in Texas and nationally. He responded to questions from the committee.

05:12 PM -- Pete Hautzinger, District Attorney in the 21st Judicial District, testified in opposition to the bill. Mr. Hautzinger discussed his experience as a member of the Colorado Commission on Criminal and Juvenile Justice (CCJJ). He expressed frustration that the General Assembly does not let the CCJJ do the work with which it was originally charged. He stressed the importance of making decisions based on evidence-based practices.

05:17 PM -- Leslie Hansen, representing the 18th Judicial District Attorney's Office, testified in opposition to the bill. Ms. Hansen discussed the factors her office takes into account when deciding to direct file. She expressed her opinion that the bill will result in additional hearings that will revictimize the victims. She responded to questions from the committee.

05:24 PM -- Tom Raynes, representing the Colorado District Attorneys' Council, testified in opposition to the bill. Mr. Raynes discussed the reasons he thinks the current system works and should not be changed. He provided statistics about juvenile transfer and direct file laws in other states. He stated his opinion that the bill would make Colorado one of the most lenient states in the area of prosecuting juvenile criminal offenses. Mr. Raynes responded to questions from the committee.

05:33 PM -- Michael Dougherty, representing the Colorado Attorney General's Office, testified in opposition to the bill. Mr. Dougherty expressed his opinion that the current system works well and should not be changed. He indicated that an evidence-based study of the juvenile justice system would be beneficial. He responded to questions from the committee.

05:38 PM -- Peg Ackerman, representing the County Sheriffs of Colorado, testified in opposition to the bill.

05:40 PM -- Kim Dvorchak returned to the table to continue her testimony. She spoke about national trends in juvenile justice and distributed three handouts (Attachments H, I, & J).

05:44 PM

Representative McCann wrapped up the presentation of the bill and made closing remarks. Representative Nikkel added additional closing remarks.

05:49 PM -- Mike Violette, representing the Colorado Fraternal Order of Police, testified in support of the bill.


BILL:	HB12-1271
TIME:	05:55:42 PM
MOVED:	Nikkel
MOTION:	Adopt prepared amendment L.003 (Attachment A). The motion passed without objection.
SECONDED:	Lee
		VOTE
	DelGrosso
	Duran
	Kagan
	Lee
	Nikkel
	Pabon
	Ryden
	Sonnenberg
	Waller
	Barker
	Gardner B.

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


BILL:	HB12-1271
TIME:	05:56:27 PM
MOVED:	Nikkel
MOTION:	Refer House Bill 12-1271, as amended, to the Committee on Appropriations. The motion passed on a vote of 9-2.
SECONDED:	Kagan
		VOTE
	DelGrosso	Yes
	Duran	Yes
	Kagan	Yes
	Lee	Yes
	Nikkel	Yes
	Pabon	Yes
	Ryden	Yes
	Sonnenberg	Yes
	Waller	No
	Barker	Yes
	Gardner B.	No

Final YES: 9 NO: 2 EXC: 0 ABS: 0 FINAL ACTION: PASS

05:57 PM

The committee took a brief recess.

06:03 PM -- House Bill 12-1232

The committee came back order.

Representative Gardner, prime sponsor, presented House Bill 12-1232 concerning a limitation on liability for the treatment costs of specified health care conditions of a person in custody. He asked the committee to postpone the bill indefinitely because it requires further study and discussion by the stakeholders.

Representative Barker announced that the committee would vote on the bill after consideration of Senate Bill 12-035.

06:05 PM -- Senate Bill 12-035

Representative Gardner, sponsor, presented Senate Bill 12-035 concerning limited liability for spaceflight activities. The bill creates a statutory limitation of liability for public and private entities holding a Federal Aviation Administration license for spaceflight activities. These spaceflight entities are required to issue a written warning, in terms provided by the bill, and obtain a signed agreement from all participants in spaceflight activities. With a signed agreement and warning statement, spaceflight entities are not liable for injury resulting from spaceflight activities, except in cases involving gross negligence, knowledge of a dangerous condition, or intentional injury.

Representative Gardner introduced the four witnesses who signed up to testify on the bill and announced that they were all in support of the bill. The witnesses were:

• Tom Clark, representing the Metro Denver Economic Development Council;
• Barry Gore, representing the Metro Denver Economic Development Council;
• Allan Lockheed, Jr., representing himself; and
• Dennis Heap, representing Front Range Airport.

Representative Gardner responded to questions from members of the committee.

06:19 PM

The committee continued to discuss the need for the bill.


BILL:	SB12-035
TIME:	06:21:09 PM
MOVED:	Kagan
MOTION:	Amend the bill, page 4, line 23, strike "gross." The motion failed on a vote of 1-9, with 1 excused.
SECONDED:	Pabon
		VOTE
	DelGrosso	No
	Duran	Excused
	Kagan	Yes
	Lee	No
	Nikkel	No
	Pabon	No
	Ryden	No
	Sonnenberg	No
	Waller	No
	Barker	No
	Gardner B.	No

YES: 1 NO: 9 EXC: 1 ABS: 0 FINAL ACTION: FAIL


BILL:	SB12-035
TIME:	06:22:34 PM
MOVED:	Gardner B.
MOTION:	Refer Senate Bill 12-035 to the Committee of the Whole. The motion passed on a vote of 10-0, with 1 excused.
SECONDED:	Ryden
		VOTE
	DelGrosso	Yes
	Duran	Excused
	Kagan	Yes
	Lee	Yes
	Nikkel	Yes
	Pabon	Yes
	Ryden	Yes
	Sonnenberg	Yes
	Waller	Yes
	Barker	Yes
	Gardner B.	Yes

Final YES: 10 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS

06:23 PM -- House Bill 12-1232


BILL:	HB12-1232
TIME:	06:23:37 PM
MOVED:	Gardner B.
MOTION:	Postpone indefinitely House Bill 12-1232 at the request of the sponsor. The motion passed on a vote of 9-1, with 1 excused.
SECONDED:	DelGrosso
		VOTE
	DelGrosso	Yes
	Duran	Excused
	Kagan	Yes
	Lee	Yes
	Nikkel	Yes
	Pabon	Yes
	Ryden	Yes
	Sonnenberg	No
	Waller	Yes
	Barker	Yes
	Gardner B.	Yes

Final YES: 9 NO: 1 EXC: 1 ABS: 0 FINAL ACTION: PASS

06:24 PM -- House Bill 12-1310

Representative Gardner, prime sponsor, presented House Bill 12-1310. This omnibus bill addresses several areas of statute governing criminal proceedings. Among other things, the bill:

Sentencing

modifies the length of time a case may be continued following a defendant's plea of guilty for the purposes of entering judgment and sentencing to four years for a felony or two years for a misdemeanor, petty offense, or traffic offense;

clarifies that deferred sentencing begins on the date the court continues the case, not the date that the defendant enters his or her plea;

repeals the authority of a court to convert a determinate sentence to an indeterminate sentence for certain crimes related to child prostitution and child pornography;

eliminates a requirement that the court make specific findings and on the record when the sentencing of a juvenile deviates from placement report recommendations; and

removes a requirement to sentence certain persons to probation for second, third, or subsequent DUI offenses and instead allows, if a defendant is sentenced to the Department of Corrections, the defendant to complete court-ordered programs and treatment while on parole.

Court proceedings

allows labels listing contents of commercially packaged items as evidence;

if requested by any party, it requires the court to impanel at least one alternate juror to sit in a case for a class 1, 2, or 3 felony;

removes the right of a grand jury witness to consult with the public defender's office and instead allows the individual to request that the court appoint an attorney to consult with or represent the witness; and

requires a bond agent to indicate in writing whether the surety consents to the continuance of bond through sentencing of the defendant.

Sex offenses

allows sex-offender evaluations up to two years old to be included in a presentence report and excludes certain misdemeanor offenses from the requirement to include a sex-offender evaluation unless ordered by the court; and

permits an additional extension of up to two years for a deferred sentence for a sex offense when good cause is shown.

Probation

specifies that, for the purposes of eligibility for probation, a conviction means a verdict or plea of guilty or nolo contendere and does not include a plea to a deferred judgment and sentence unless it is revoked;

requires a probationer who wishes to transfer his or her probation to another state to pay a $100 filing fee, credited to Interstate Compact Probation Transfer Cash Fund; and

clarifies that the court cannot charge a probationer for the costs of returning the probationer to Colorado.

Miscellaneous

clarifies the definition of earnings for purposes of garnishment, permits the court to use a collections investigator, and prioritizes the collection of court costs, fines, and restitution over most other orders;

allows a collections investigator to issue an attachment of earnings;

specifies record-sealing rights of a person convicted of minor in possession of alcohol; and

expands the data to be included in the Judicial Department's annual report.


BILL:	HB12-1310
TIME:	06:26:36 PM
MOVED:	Kagan
MOTION:	Adopt prepared amendment L.002 (Attachment K). A substitute motion was made to adopt prepared amendment L.003.
SECONDED:	Lee
		VOTE
	DelGrosso
	Duran
	Kagan
	Lee
	Nikkel
	Pabon
	Ryden
	Sonnenberg
	Waller
	Barker
	Gardner B.

YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION:


BILL:	HB12-1310
TIME:	06:29:02 PM
MOVED:	Gardner B.
MOTION:	SUBSTITUTE MOTION: Adopt prepared amendment L.003 (Attachment L). The motion passed without objection.
SECONDED:	Sonnenberg
		VOTE
	DelGrosso
	Duran
	Kagan
	Lee
	Nikkel
	Pabon
	Ryden
	Sonnenberg
	Waller
	Barker
	Gardner B.

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


BILL:	HB12-1310
TIME:	06:33:00 PM
MOVED:	Gardner B.
MOTION:	Adopt prepared amendment L.001 (Attachment M). The motion passed without objection.
SECONDED:	Sonnenberg
		VOTE
	DelGrosso
	Duran
	Kagan
	Lee
	Nikkel
	Pabon
	Ryden
	Sonnenberg
	Waller
	Barker
	Gardner B.

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


BILL:	HB12-1310
TIME:	06:35:55 PM
MOVED:	Gardner B.
MOTION:	Refer House Bill 12-1310, as amended, to the Committee on Finance. The motion passed on a vote of 9-1, with 1 excused.
SECONDED:	Waller
		VOTE
	DelGrosso	Yes
	Duran	Excused
	Kagan	Yes
	Lee	Yes
	Nikkel	No
	Pabon	Yes
	Ryden	Yes
	Sonnenberg	Yes
	Waller	Yes
	Barker	Yes
	Gardner B.	Yes

Final YES: 9 NO: 1 EXC: 1 ABS: 0 FINAL ACTION: PASS

06:37 PM -- House Bill 12-1305

Representative Gardner, prime sponsor, presented House Bill 12-1305 concerning statutory rates of interest. Under current law, when no prior agreement exists or another provision of law specifies a different interest rate, creditors will receive interest at 8.0 percent. House Bill 12-1305 alters this statutory interest rate from a fixed rate to a floating rate; specifically, the statutory interest rate is changed from 8.0 percent to 2.0 percentage points above the discount rate a commercial bank pays to the Federal Reserve Bank of Kansas City on January 2nd of the year the moneys are due. This statute applies primarily to two private parties involved in a civil suit, although it is possible for the state to be one of the parties.

The bill also alters the day the statutory pre-judgement and post-judgement interest rate for personal injury cases is certified by the Secretary of State from January 1 to January 2 of a given year. The interest rate will remain 2 percentage points above the discount rate a commercial bank pays to the Federal Reserve Bank of Kansas City.

Representative Gardner responded to questions from the committee.

06:58 PM -- Darin Schanker, representing the Colorado Trial Lawyers' Association, testified in opposition to the bill. Mr. Schanker stated his opinion that the bill gives insurance companies an incentive to delay paying legitimate claims. He explained current law on this subject. He responded to questions from the committee.

07:12 PM -- Casey Quillen, representing the Colorado Defense Lawyers' Association, testified in support of the bill. Ms. Quillen stated her support for a simple and unified interest scheme. She discussed current law on this subject. She responded to questions from the committee.

07:24 PM -- Lee Mickus, representing the Colorado Civil Justice League, testified in support of the bill. Mr. Mickus discussed the current statutory rates of interest and responded to questions from the committee.


BILL:	HB12-1305
TIME:	07:42:17 PM
MOVED:	Gardner B.
MOTION:	Adopt prepared amendment L.001 (Attachment N). The motion passed on a vote of 8-2, with 1 excused.
SECONDED:	DelGrosso
		VOTE
	DelGrosso	Yes
	Duran	Excused
	Kagan	No
	Lee	Yes
	Nikkel	Yes
	Pabon	No
	Ryden	Yes
	Sonnenberg	Yes
	Waller	Yes
	Barker	Yes
	Gardner B.	Yes

YES: 8 NO: 2 EXC: 1 ABS: 0 FINAL ACTION: PASS


BILL:	HB12-1305
TIME:	07:44:06 PM
MOVED:	Gardner B.
MOTION:	Refer House Bill 12-1305, as amended, to the Committee of the Whole. The motion passed on a vote of 6-4, with 1 excused.
SECONDED:	Waller
		VOTE
	DelGrosso	Yes
	Duran	Excused
	Kagan	No
	Lee	No
	Nikkel	Yes
	Pabon	No
	Ryden	No
	Sonnenberg	Yes
	Waller	Yes
	Barker	Yes
	Gardner B.	Yes

Final YES: 6 NO: 4 EXC: 1 ABS: 0 FINAL ACTION: PASS

07:47 PM

The committee adjourned.