Final
STAFF SUMMARY OF MEETING

SENATE COMMITTEE ON JUDICIARY

Date:03/21/2012
ATTENDANCE
Time:01:31 PM to 04:04 PM
Giron
X
King S.
X
Place:SCR 356
Lundberg
X
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:
HB12-1036
HB12-1307
HB12-1116		Witness Testimony and/or Committee Discussion Only
Referred to the Committee of the Whole
Postponed Indefinitely


01:31 PM -- House Bill 12-1036

Senator Carroll, chair, called the meeting to order.

Senator Boyd, sponsor, presented House Bill 12-1036. The bill clarifies that the current exemption from the Colorado Open Records Act (CORA) for investigative files compiled for law enforcement purposes applies to investigative files compiled for any civil, administrative, or criminal law enforcement purpose. Senator Boyd explained amendments adopted in the House Judiciary Committee.

The following individuals testified regarding the bill:

01:33 PM -- Mr. David Blake, representing the Office of the Attorney General, testified in support of the bill. He spoke about Attorney General John Suthers' commitment to open government and transparency. He discussed the need to protect the reputations of those who are investigated but who are later cleared of any charges. He explained the Land Owners United v. Colorado Division of Real Estate case that is the impetus for the bill. Mr. Blake explained negotiations leading to the compromise amendment adopted in the House Judiciary Committee. He noted the complications inherent in CORA. He listed several parties that are neutral on or opposed to the bill.

01:41 PM -- Mr. Jan Zavislan, representing the Office of the Attorney General, testified in support of the bill. He described his experience in civil investigations. He spoke about the benefits of those investigations for individuals and for businesses. He discussed the importance of ensuring that targets of an investigation are not aware that they are being investigated. Mr. Zavislan summarized the amendment adopted in the House Judiciary Committee. He stated that a stigma may be attached to individuals who are investigated by the Office of the Attorney General. He explained how the Land Owners United case changes current practices.











01:51 PM

Senator Carroll spoke about the difference between open and closed cases. She sought background on whether the current law was intended to include civil and administrative as well as criminal investigations. Mr. Zavislan described various interpretations of the current law. He said that investigations are not proof. Senator Carroll asked whether the fact that the Attorney General is conducting an investigation should be public. Mr. Zavislan spoke about the practices of attorneys general in other states. He explained how publicity may impact the office's ability to conduct an investigation.


01:59 PM

Senator Guzman asked which regulatory agencies support the bill. Mr. Blake said that representatives from the Colorado Department of Public Health and Environment (CDPHE) and the Colorado Department of Regulatory Agencies testified in support of the bill in the House Judiciary Committee. Discussion continued between Senator Guzman and Mr. Zavislan concerning how the bill might affect the Colorado Department of Natural Resources. Senator Nicholson spoke about investigations by the CDPHE concerning E. coli levels in a creek. Mr. Zavislan said that cases like that illustrate why exceptions to CORA are discretionary. Mr. Blake shared further remarks on this issue. He expressed the view that keeping a file open in order to avoid a CORA request would be an abuse of discretion.


02:09 PM

Senator S. King expressed his concerns about language on page 2, lines 15 through 16 of the bill. Discussion ensued between Senator S. King and Mr. Zavislan. Mr. Blake and Mr. Zavislan then responded to a series of questions from Senator Carroll concerning the intent of the bill and language on page 2, line 19, regarding investigations that have concluded. Discussion turned to whether criminal investigations that have been concluded are subject to CORA.


02:23 PM

Senator Carroll asked how the office would determine when an investigation has been concluded. Mr. Zavislan noted that CORA already imposes upon custodians a standard to act in good faith. Senator Carroll asked what events would trigger the Office of the Attorney General to determine that an investigation has been concluded. Mr. Zavislan said that a case being filed would be one such event. Another such event would be an investigation that reveals that no violations have occurred. Senator Carroll asked about cases in which an investigation indicates a violation, but the case will not go to litigation. Mr. Zavislan responded to her question.
















02:32 PM

Senator Carroll spoke about language on page 2, line 13. She asked how "records" would be defined in this context. Mr. Blake responded to her question. Senator Carroll expressed her concerns that something that is a public record today would stop being a public record during an open investigation. Mr. Zavislan weighed in as well. Senator Carroll expressed her concerns about possible ambiguities in the way that the bill is currently drafted. Discussion ensued between Senator Carroll and Mr. Zavislan, with Senator S. King weighing in as well.

02:44 PM -- Mr. Dean Beers, representing the Professional Private Investigators' Association of Colorado (PPIAC), the National Council of Investigation and Security Services, the World Association of Detectives, and the National Association of Legal Investigators, testified in opposition to the bill. He expressed the view that the bill is ambiguous concerning when a custodian is required to disclose information.

02:49 PM -- Mr. Robert Orozco, representing the PPIAC, testified in opposition to the bill. He expressed the view that the bill is misleading. He described the impact of the bill on the practices of private investigators. He spoke about a potential amendment that would provide for a permissible purpose to allow access to certain records.

02:52 PM -- Mr. Ryan Johnston, representing PPIAC, testified in opposition to the bill. He supports the provisions of the bill related to open cases, but he expressed concerns with limited access to documents concerning cases in which evidence indicates that violations have occurred but the case is not taken to litigation.

02:55 PM -- Ms. Sheryle Hutter, representing the Colorado Cross-Disability Coalition, the Equal Justice Foundation, and Parents of Adults with Disabilities of Colorado, testified in opposition to the bill. She said that it would be costly to go to court to enforce the CORA. She stated that parties were excluded from negotiations concerning the bill. Ms. Hutter responded to questions from Senator S. King.

03:00 PM -- Mr. Greg Romberg, representing the Colorado Press Association and the Colorado Broadcasters' Association, testified regarding the bill. He provided background concerning disagreements on the bill as introduced. He stated that a record is either public or it isn't, and it shouldn't matter who is asking for the record or for what reason. Mr. Romberg responded to questions from Senator Guzman concerning whether the bill is necessary.


03:06 PM

Senator Carroll announced that the bill would be laid over for action only. Senator Boyd spoke about the legislative intent of CORA.

















03:08 PM -- House Bill 12-1307

Senator Roberts, sponsor, presented House Bill 12-1307. Current law does not allow a nonlawyer trustee to represent a trust in hearings before the Board of Assessment Appeals (BAA). This bill authorizes a nonlawyer trustee to represent a trust in those hearings if the trust consists of total assets of less than $3 million. She spoke about a Court of Appeals case related to this issue. She expressed her concerns about the $3 million threshold in the bill.


03:13 PM

Senator Carroll explained her understanding of the bill. Discussion ensued between Senator Carroll and Senator Roberts. Senator Lundberg asked how the $3 million value would be established. Discussion continued between Senator Lundberg and Senator Roberts on this point.


03:21 PM

Senator S. King asked if anyone in the House or the Senate read the Court of Appeals ruling requiring an attorney to be present during certain negotiations or hearings. Senator Roberts responded to his question.

The following individuals testified regarding the bill:

03:23 PM -- Mr. Bruce Eisenhauer, representing the Department of Local Affairs, testified regarding the bill. He described the work of the BAA. He spoke about discussions in the House concerning the $3 million threshold. Mr. Eisenhauer responded to questions from Senator Lundberg concerning the intent in defining a specific threshold. Senator Carroll spoke about differences in fees for lawyers and nonlawyers. She asked if language in the bill might preclude lawyers from representing a trust with total assets of more than $3 million.


03:34 PM

Senator Lundberg spoke about complex compared to simple cases and situations in which a family member represents the trust. Senator Roberts responded to his remarks.

03:36 PM -- Mr. Bart Miller, representing the Office of Legislative Legal Services, came to the table to respond to questions from the committee. Mr. Eisenhauer weighed in as well to explain the filing process with the BAA. Senator Roberts spoke about filing fees. Senator Roberts asked for Mr. Miller's thoughts on the $3 million threshold.


03:43 PM

Senator Lundberg spoke about how the total value of the trust may be related to a case's complexity.











03:45 PM

Senator Roberts offered closing comments in favor of the bill. She expressed her intention to offer an amendment addressing the $3 million threshold.
BILL:HB12-1307
TIME: 03:50:29 PM
MOVED:Roberts
MOTION:Refer House Bill 12-1307 to the Committee of the Whole. The motion passed on a vote of 7-0.
SECONDED:
VOTE
Giron
Yes
King S.
Yes
Lundberg
Yes
Nicholson
Yes
Roberts
Yes
Guzman
Yes
Carroll
Yes
Final YES: 7 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS


03:51 PM -- House Bill 12-1116

Senator Nicholson, sponsor, presented House Bill 12-1116. The reengrossed bill adds disclosure requirements to real estate transactions involving the resale of time share properties. Agreements to transfer time share resale interests must include a description of any residual interests retained by the seller, a list of costs for time share resale services, a statement regarding any other person who may use the time share after the interest has been transferred, and various other disclosures. Time share contracts and time share resale services covered by the bill do not include professionals (e.g., attorneys, escrow agents) providing certain transactional services or the developer or association managing a time share community according to an existing plan.

The bill creates a new cause of action under the Colorado Consumer Protection Act for deceptive trade practices. Deceptive trade practices occur when time share resale entities fail to provide disclosures as required by the bill. These time share resale entities may rely upon information provided by the owner, developer, or association managing the time share.
















03:52 PM

Senator Nicholson explained her concerns with the bill. She asked the committee to postpone the bill indefinitely. Senator Roberts asked if there would be a way to work through any concerns with the bill. Senator Nicholson expressed her intention to work on a bill for next session that protects the rights of time-share owners. Senator S. King spoke about letters he received in support of the bill. He expressed his concerns with postponing the bill indefinitely. Senator Carroll responded to his remarks. Senator S. King raised the possibility of laying the bill over to find another sponsor. Senator Nicholson responded to his remarks. Senator Lundberg urged Senator Nicholson to find a way to ensure that the bill receives a fair hearing. Senator Guzman listed her concerns with the bill.

No witness testimony was taken.
BILL:HB12-1116
TIME: 04:03:27 PM
MOVED:Nicholson
MOTION:Postpone House Bill 12-1116 indefinitely at the request of the sponsor. The motion passed on a vote of 4-3.
SECONDED:
VOTE
Giron
Yes
King S.
No
Lundberg
No
Nicholson
Yes
Roberts
No
Guzman
Yes
Carroll
Yes
Final YES: 4 NO: 3 EXC: 0 ABS: 0 FINAL ACTION: PASS


04:04 PM

The committee adjourned.