House Committee on Judiciary (03/21/2013)

Final
STAFF SUMMARY OF MEETING

HOUSE COMMITTEE ON JUDICIARY

Date:	03/21/2013	ATTENDANCE

Time:	01:51 PM to 05:57 PM	Buckner	X
		Court	X
Place:	HCR 0112	Gardner	X
		Lawrence	X
This Meeting was called to order by		McLachlan	E
	Representative Kagan	Murray	X
		Pettersen	X
This Report was prepared by		Salazar	X
	Jessika Shipley	Wright	X
		Lee	*
		Kagan	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
HB13-1148 SB13-077 SB13-184 HB13-1210		Postponed Indefinitely Referred to the Committee of the Whole Referred to the Committee of the Whole Amended, Referred to Appropriations

01:52 PM -- House Bill 13-1148

Representative Foote, prime sponsor, asked the committee to postpone indefinitely House Bill 13-1148. The bill makes changes to the sentencing of persons convicted of certain violent crimes by:

repealing the extraordinary risk sentencing enhancer;

reducing the mandatory sentence for certain crimes from the midpoint in the presumptive sentencing range to the minimum of the presumptive sentencing range; and

increasing maximum sentences for class 3 through class 6 felonies.

The bill also makes certain child abuse and stalking crimes a crime of violence rather than extraordinary risk crimes.


BILL:	HB13-1148
TIME:	01:54:27 PM
MOVED:	Court
MOTION:	Postpone House Bill 13-1148 indefinitely at the request of the sponsor. The motion passed on a vote of 9-0, with 2 excused.
SECONDED:	Salazar
		VOTE
	Buckner	Yes
	Court	Yes
	Gardner	Yes
	Lawrence	Yes
	McLachlan	Excused
	Murray	Yes
	Pettersen	Yes
	Salazar	Yes
	Wright	Yes
	Lee	Excused
	Kagan	Yes

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

01:56 PM -- Senate Bill 13-077

Representative Pabon, sponsor, presented Senate Bill 13-077. The reengrossed bill modifies probate proceedings in the areas of testimony, personal representatives, and roles and responsibilities of trustees. Specifically, the bill:

clarifies circumstances under which someone can testify regarding an oral statement of a person incapable of testifying;

clarifies who may ascertain the testator’s probable intent or estate planning purpose on issues involving the decedent’s estate;

requires a personal representative to solicit any individual who has knowledge that there is a valid, unrevoked designated beneficiary agreement in which the decedent granted the right of intestate succession to give written notice of such knowledge to the personal representative;

adds child support claims of the decedent that were due and unpaid at death, and any future child support obligations of the decedent as determined by the court, to the classification of claims to be paid;

adds personal property, including funds on deposit at any financial institution, to assets eligible for collection by affidavit;

clarifies the process for preserving assets for individuals who are dependent upon the respondent while a petition for conservatorship or a protective order are pending;

clarifies the circumstances under which a respondent's alleged impairment may be evaluated;

clarifies the process available to a conservator when payment of claims would substantially deplete the estate and leave the estate with insufficient funds to pay the protected person's basic living and health expenses;

gives a trustee the discretionary authority to reimburse the grantor for payment of the income taxes attributable to the trust;

allows a trustee to acquire or retain as a trust asset a life insurance policy on the life of a person for whom the trustee has an insurable interest;

adds a new Part 7 to Article 16 of Title 15 of the Colorado Revised Statutes, concerning revocable trusts; and

clarifies the applicability of the effective date of the Colorado probate code to conform to the Uniform Probate Code.

02:05 PM -- Marc Darling, representing the Trusts and Estates Section of the Colorado Bar Association, testified in support of the bill. Mr. Darling explained each section of the bill in detail. He responded to questions from the committee.

02:15 PM

Representative Pabon responded to questions from the committee about the changes made to the bill in the Senate.


BILL:	SB13-077
TIME:	02:17:59 PM
MOVED:	Court
MOTION:	Refer Senate Bill 13-077 to the Committee of the Whole. The motion passed on a vote of 9-0, with 2 excused.
SECONDED:	Salazar
		VOTE
	Buckner	Yes
	Court	Yes
	Gardner	Yes
	Lawrence	Yes
	McLachlan	Excused
	Murray	Yes
	Pettersen	Yes
	Salazar	Yes
	Wright	Yes
	Lee	Excused
	Kagan	Yes

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

02:20 PM -- Senate Bill 13-184

The committee recessed briefly.

02:33 PM

The committee returned to order. Representative Rosenthal, sponsor, presented Senate Bill 13-184. The bill repeals the criminal penalties associated with acts of discrimination in places of public accommodation. It leaves in place the civil penalties that can be assessed by the Division of Civil Rights in the Department of Regulatory Agencies (DORA).

Background. It is unlawful under Colorado law for a person to directly or indirectly discriminate on the basis of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, in a place of public accommodation. Places of public accommodation include businesses, health care facilities, educational institutions, and public facilities of any kind, but not including places principally used for religious purposes. Criminal actions have not been enforced in any recent case.

Representative Rosenthal responded to questions from the committee about the purpose of the bill and his reasons for sponsoring it.


BILL:	SB13-184
TIME:	02:40:18 PM
MOVED:	Court
MOTION:	Refer Senate Bill 13-184 to the Committee of the Whole. The motion passed on a vote of 7-2, with 2 excused.
SECONDED:	Buckner
		VOTE
	Buckner	Yes
	Court	Yes
	Gardner	No
	Lawrence	Yes
	McLachlan	Excused
	Murray	Yes
	Pettersen	Yes
	Salazar	Yes
	Wright	No
	Lee	Excused
	Kagan	Yes

Final YES: 7 NO: 2 EXC: 2 ABS: 0 FINAL ACTION: PASS

02:41 PM -- House Bill 13-1210

Representative Kagan, prime sponsor, presented House Bill 13-1210. Current law requires an indigent person charged with a misdemeanor, petty offense, traffic offense, or municipal or county ordinance violation, for which there is the possibility of a jail sentence, to meet with a prosecuting attorney prior to being appointed legal counsel. This bill repeals that requirement.

Background. In 1993, as a way to move some criminal cases along more quickly, the Colorado General Assembly amended the law to require indigent defendants charged with misdemeanors, petty offenses, and traffic offenses to meet with a prosecuting attorney to resolve the case before applying for a public defender. Additionally, the state is not required to bear the cost of providing court-appointed counsel in cases where the prosecution is not seeking a sentence of incarceration.

02:54 PM

Representative Kagan addressed prepared amendment L.001 (Attachment A). The committee discussed the amendment.

13HseJud0321AttachA.pdf

02:57 PM -- Tom Raynes, representing the Colorado District Attorneys' Council, testified in opposition to the bill. Mr. Raynes distributed two handouts (Attachments B and C). The first is a general summary of Rothgery v. Gillespie County, 554 U.S. 191 (2008), a United States Supreme Court case. The other is an explanation about why the Colorado statute is not in violation of the holding in that case. He spoke about the costs associated with the bill.

13HseJud0321AttachB.pdf

13HseJud0321AttachC.pdf

03:06 PM

Mr. Raynes continued to discuss the facts of the Rothgery case and how the right to counsel attaches at the advisement of charges by the prosecution. He discussed Colorado law on advisement. He stated that defendants are under no obligation to speak with the prosecutor and the prosecutor is required to advise the defendant that he or she has the right to retain counsel or seek appointment of counsel. He commented about the problem and suggested three things to do in order to solve that problem. These are: delete a problematic sentence from the relevant statute; insert another advisement by the court making it clear to the defendant that he or she is not obligated to talk to the district attorney and allow the defendant to invoke the right to counsel at that moment; and before accepting a plea and as part of the final advisement, warn the defendant of the potential collateral consequences related to a guilty plea.

03:14 PM

Mr Raynes discussed reasons he believes the bill to be unnecessary. He responded to questions from the committee about his suggestions for fixing the problem.

03:23 PM

Committee discussion ensued about Mr. Raynes' alternative solution.

03:39 PM

Committee discussion continued about the attachment of the right to counsel.

03:48 PM

The committee continued to discuss the constitutionality of Colorado law.

03:54 PM -- Matt Durkin, representing the Department of Law, testified in opposition to the bill. Mr. Durkin objected to any characterization of the Colorado court system as coercive. He provided several reasons why he believes it is not coercive. He discussed the various steps in the process of arraignment on misdemeanor charges. He stated his belief that the bill attempts to solve problems that occur in other states, not in Colorado. He raised concerns about the costs of the bill. Mr. Durkin responded to questions from the committee.

04:07 PM

Mr. Durkin continued to respond to committee questions about the criminal court process.

04:14 PM -- Connie Talmage, representing the Colorado Lawyers' Committee, testified in support of the bill. Ms. Talmage spoke about the work of the Colorado Lawyers' Committee in taking on large systemic problems in the justice system on a pro bono basis. She discussed her work on the examination of section 16-7-301 of the Colorado Revised Statutes. She addressed a pending lawsuit on the subject and commented that the lawsuit would be dropped if the bill passes. She responded to questions from the committee regarding the constitutionality of the provision of law and the penalties associated with being convicted of a third felony.

04:24 PM -- Lisa Wayne, representing the National Association of Criminal Defense Lawyers, testified in support of the bill. Ms. Wayne stated her opinion that the key issue in this case is that poor people suffer because the timing of the appointment of defense counsel forces guilty pleas on the backs of individuals who don't understand the system or the long-term consequences of a criminal conviction. She spoke about the lack of public defenders in county courts for appointment to misdemeanor defendants. She commented that the current system attempts to save money at the expense of poor people. She further explained collateral consequences of criminal convictions. Ms. Wayne responded to questions from the committee about how other states handle these situations.

04:41 PM -- Darren Cantor, representing the Colorado Criminal Defense Bar, testified in support of the bill. Mr. Cantor stated that an adversarial system requires two parts and the current system is missing one of those parts. He indicated that this creates an imbalance of power that negatively impacts criminal defendants, especially poor people. He spoke about collateral consequences, including those related to immigration, housing, custody, employment in a particular field, and firearms ownership. He spoke about the need for defendants to truly understand these consequences. He discussed the motives of district attorneys in opposing the bill. Mr. Cantor responded to questions from the committee.

04:58 PM -- Dave Kopel, representing himself, testified in support of the bill. Mr. Kopel spoke about the attachment of the right to counsel. He expressed his opinion that current law violates the Sixth Amendment and the bill fixes this constitutional problem. He responded to questions from the committee.

05:09 PM -- Dani Haraburda, representing the Colorado Criminal Justice Reform Coalition, testified in support of the bill. Ms. Haraburda spoke about collateral consequences.

05:16 PM -- Doug Wilson and Doug Tracey, representing the Office of the State Public Defender, testified in support of the bill. Mr. Wilson spoke about the history of the current law and case law on this issue. He discussed justice, good public policy, the Gideon v. Wainright case (372 U.S. 335 (1963)), the attachment of the right to counsel, and the holding in the Rothgery case.

05:26 PM

Mr. Wilson continued discussing the timing of the attachment of the right to counsel. He stated his opinion that the costs associated with the bill are irrelevant and should not be important when dealing with constitutional rights. He read examples of cases from public defender offices around the state where pro se defendants accepted pleas without previously consulting with legal counsel.

05:40 PM

Mr. Wilson responded to questions from the committee about his implementation plan for the additional staff required by the bill.


BILL:	HB13-1210
TIME:	05:43:24 PM
MOVED:	Kagan
MOTION:	Adopt amendment L.001 (Attachment A). The motion passed without objection.
SECONDED:	Salazar
		VOTE
	Buckner
	Court
	Gardner
	Lawrence
	McLachlan	Excused
	Murray
	Pettersen
	Salazar
	Wright
	Lee
	Kagan

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


BILL:	HB13-1210
TIME:	05:56:18 PM
MOVED:	Kagan
MOTION:	Refer House Bill 13-1210, as amended, to the Committee on Appropriations. The motion passed on a vote of 8-2, with 1 excused.
SECONDED:	Salazar
		VOTE
	Buckner	Yes
	Court	Yes
	Gardner	No
	Lawrence	No
	McLachlan	Excused
	Murray	Yes
	Pettersen	Yes
	Salazar	Yes
	Wright	Yes
	Lee	Yes
	Kagan	Yes

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

05:57 PM

The committee adjourned.