House Committee on Judiciary (05/01/2014)

Final
STAFF SUMMARY OF MEETING

HOUSE COMMITTEE ON JUDICIARY

Date:	05/01/2014	ATTENDANCE

Time:	01:48 PM to 09:46 PM	Buckner	X
		Court	X
Place:	HCR 0112	Gardner	X
		Lawrence	*
This Meeting was called to order by		McLachlan	X
	Representative Kagan	Murray	X
		Pettersen	X
This Report was prepared by		Salazar	X
	Bo Pogue	Waller	X
		Lee	X
		Kagan	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
SB14-190 SCR14-002 SB14-023 SB14-023 SB14-206 SB14-203 SB14-212		Referred to Finance Postponed Indefinitely Referred to the Committee of the Whole Referred to the Committee of the Whole Amended, Referred to the Committee of the Whole Referred to Appropriations Referred to the Committee of the Whole

01:48 PM -- SB14-190

The committee was called to order. A quorum was present. Representative Gerou, prime sponsor, presented Senate Bill 14-190, concerning criminal discovery, and, in connection therewith, creating a statewide discovery sharing system, a criminal discovery surcharge, and civil immunity for district attorneys that make a good-faith effort to redact information from discovery documents. Committee members received a summary of the bill created by Joint Budget Committee Staff (Attachment A). Representative Gerou provided background on the work of the Discovery Task Force, and explained the effect of the bill. Discussion ensued regarding the fiscal impact of the bill, and the source of funding for creating the statewide discovery sharing system.

14HseJud0501AttachA.pdf

02:00 PM

The following persons testified regarding Senate Bill 14-190:

02:01 PM -- Mr. Phil Cherner, Mr. Jerry Marroney, and Mr. Matthew Durkin, representing the Colorado Criminal Defense Bar, the Judicial Department, and the Attorney General's Office respectively, testified in support of the bill. Mr. Durkin discussed the work of the Discovery Task Force, and addressed questions raised earlier about how the bill's costs will be covered. Mr. Marroney discussed the stakeholders that worked on the bill, and explained that the bill's programming will be funded through the Judicial Branch. Mr. Cherner also offered his support for the bill.

02:05 PM

No amendments offered to Senate Bill 14-190.


BILL:	SB14-190
TIME:	02:06:26 PM
MOVED:	Court
MOTION:	Refer Senate Bill 14-190 to the Committee on Finance. The motion passed on a vote of 11-0.
SECONDED:	Buckner
		VOTE
	Buckner	Yes
	Court	Yes
	Gardner	Yes
	Lawrence	Yes
	McLachlan	Yes
	Murray	Yes
	Pettersen	Yes
	Salazar	Yes
	Waller	Yes
	Lee	Yes
	Kagan	Yes

Final YES: 11 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS

02:08 PM -- SCR14-002

The committee recessed.

02:14 PM

The committee returned to order. Representatives Nordberg and Salazar, prime sponsors, presented Senate Concurrent Resolution 14-002, concerning submitting to the registered electors of the state of Colorado an amendment to the Colorado Constitution concerning the protection of electronic data from unreasonable searches and seizures. Committee members received copies of a newspaper editorial supporting the resolution (Attachment B). Representative Nordberg explained the effect of the resolution, and discussed the increased reliance of the public on electronic means for data storage and communications. Representative Nordberg rebutted opposition to the resolution, and discussed recent United States Supreme Court action on searches of electronic communications devices. Representative Salazar discussed security associated with the use of electronic devices, and jurisprudence in the area of searches of electronic data. Discussion ensued regarding the public expectation of privacy with respect to electronic data, and the threshold for the government to access electronic data.

14HseJud0501AttachB.pdf

02:26 PM

Discussion ensued regarding the public expectation of privacy for personal data stored "in the cloud," and the practical effect of amending the Colorado Constitution through Senate Concurrent Resolution 14-002. Representative Salazar responded to questions regarding jurisprudence in the area of searches of electronic data, and the inclusion of electronic data within the concept of "effects," as found in Article II, Section 7 of the Colorado Constitution. Discussion followed regarding certain unintended consequences associated with passage of the resolution, and the potential for entering its provisions in statute rather than the state constitution. Discussion turned to the fiscal impact of the resolution, and existing legal exceptions to search and seizure restrictions.

02:43 PM

Discussion returned to recent activity in the U.S. Supreme Court on issues associated with the search of electronic data.

02:45 PM

The following persons testified regarding Senate Concurrent Resolution 14-002:

02:45 PM -- Mr. Tom Raynes, representing the Colorado District Attorney's Council, testified in opposition to the resolution. Mr. Raynes explained why he feels the resolution is unnecessary, since technological advancement does not require the continual updating of the concept of "effects." Mr. Raynes discussed jurisprudence in the area of searches of electronic data, and the concept of the expectation of privacy. Mr. Raynes provided some history regarding Fourth Amendment jurisprudence, including the history of privacy expectation. Mr. Raynes discussed the timelessness of the language in Article II, Section 7 of the Colorado Constitution, and spoke against amending the constitution.

02:55 PM

Mr. Raynes responded to questions regarding the potential harm that may be caused by Senate Concurrent Resolution 14-002. Discussion ensued regarding the position of the American Civil Liberties Union on the nature of electronic data. Discussion followed regarding the difference between the Colorado and United States Constitutions. Discussion turned to protections of data stored in means other than electronic means.

03:03 PM -- Mr. Rich Orman, representing the 18th Judicial District, testified in opposition to the resolution. Mr. Orman explained why the resolution is unnecessary, and discussed the greater privacy rights afforded by Colorado law as compared to federal law. Mr. Orman discussed the flexibility of statutes when compared to the state constitution. Mr. Orman responded to questions regarding Colorado case law that protects personal information held by a third party. Discussion ensued regarding this point.

03:14 PM -- Mr. Andrew Cooper, representing the 18th Judicial District, testified in opposition to the resolution. Discussion ensued regarding changes to the resolution reflected in the reengrossed version. Mr. Cooper explained how electronic data is a subset of effects, and discussed the potential for police to be barred from accessing certain electronic data that is freely available to the public under the resolution. Mr. Cooper discussed potential litigation costs associated with the passage of the resolution. Discussion followed regarding cost considerations for amending the Colorado Constitution.

03:24 PM -- Mr. Matthew Durkin, representing the Attorney General's Office, testified in opposition to Senate Concurrent Resolution 14-002. Mr. Durkin addressed questions posed earlier about the potential for unintended harm to result from the passage of the resolution, and discussed limitations placed on searches by courts using the existing constitutional language pertaining to searches and seizures. Discussion ensued on this last issue.

03:31 PM -- Ms. Denise Maes, representing the American Civil Liberties Union, testified in support of the resolution. Ms. Maes rebutted claims that the resolution is unnecessary by noting that jurisprudence in the area of search and seizure of electronic data is unsettled, and discussed law enforcement's position on search and seizure involving new forms of communication. Ms. Maes addressed earlier discussion about changing the Colorado Constitution, rather than incorporating the provisions of the resolution into statute. Representative McLachlan questioned Ms. Maes' testimony, and stated his position on the resolution. Ms. Maes responded to questions regarding arguments made in case law pertaining to searches and seizures of electronic data.

03:42 PM -- Ms. Peg Ackerman, representing the County Sheriffs of Colorado, testified in support of Senate Concurrent Resolution 14-002. Ms. Ackerman discussed concerns expressed by the citizenry about government surveillance.

03:44 PM -- Mr. David Kopel, representing himself, testified in support of the resolution. Mr. Kopel provided some background on jurisprudence in the area of privacy protections, and explained that courts sometimes fail to uphold privacy protections. Mr. Kopel explained that the courts are the last line of protection for constitutional rights, and discussed the importance of constitutional protections for the citizenry, as compared to statutory protections. Mr. Kopel discussed the definition of "effects," and the accessibility of various types of electronic media and associated privacy expectations.

03:57 PM

Mr. Kopel discussed legislation similar to Senate Concurrent Resolution 14-002 pending in Missouri. Mr. Kopel responded to questions regarding case law pertaining to seizure of electronic data. Discussion ensued regarding searches incident to arrests, and court rulings on this issue.

04:03 PM

No amendments were offered to Senate Concurrent Resolution 14-002.


BILL:	SCR14-002
TIME:	04:05:23 PM
MOVED:	Salazar
MOTION:	Refer SCR14-002 to the Committee of the Whole. The motion failed on a vote of 4-6.
SECONDED:	Lawrence
		VOTE
	Buckner	No
	Court	No
	Gardner	Yes
	Lawrence	Yes
	McLachlan	No
	Murray	Yes
	Pettersen	No
	Salazar	Yes
	Waller	Excused
	Lee	No
	Kagan	No

YES: 4 NO: 6 EXC: 1 ABS: 0 FINAL ACTION: FAIL


BILL:	SCR14-002
TIME:	04:17:21 PM
MOVED:	Kagan
MOTION:	Postpone SCR14-002 indefinitely. The motion passed on a vote of 6-4.
SECONDED:	Pettersen
		VOTE
	Buckner	Yes
	Court	Yes
	Gardner	No
	Lawrence	No
	McLachlan	Yes
	Murray	No
	Pettersen	Yes
	Salazar	No
	Waller	Excused
	Lee	Yes
	Kagan	Yes

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

04:18 PM -- SB14-023

Representative Kagan provided some procedural notes about Senate Bill 14-023, concerning an authorization of the voluntary transfer of water efficiency savings to the Colorado Water Conservation Board for instream use purposes in water divisions that include lands west of the Continental Divide. Discussion ensued regarding this procedure, and the reason that the bill was referred to the committee from another standing committee. Representative Becker, prime sponsor of the bill, weighed in on this issue. Discussion followed regarding the satisfaction of certain constitutional requirements by the previous hearing on the bill. Representative Becker presented the bill, and explained its effect. She also discussed the benefits of the legislation.

04:31 PM

Representative Gardner requested additional background on the prior appropriation doctrine in water law. Discussion ensued between Representative Gardner and Representative Becker. Representative Becker indicated that witnesses would be able to address many of Representative Gardner's questions.

04:36 PM

Discussion continued regarding the prior appropriation doctrine, and the competing interests in the water market in Colorado.

04:42 PM

The committee recessed.

05:12 PM

The committee returned to order. Representative Kagan announced that the committee would proceed to the House floor for work and return afterward to hear the rest of its bills.

05:15 PM

The committee recessed.

05:56 PM -- SB14-023

The committee returned to order. Representative Becker deferred certain questions about the bill to upcoming witnesses, and responded to questions regarding why an owner of water rights does not sell excess water on the open market. Representative Becker responded to further questions regarding how the owner of water rights may dispose of water retained through efficiency savings, and the ability to retain water rights while donating water under the bill. Discussion ensued regarding what constitutes water efficiency savings. Representative Becker differentiated between consumptive and nonconsumptive water usage.

06:11 PM

Representative Becker responded to questions regarding the exclusion of certain practices from the definition of consumptive use, and the exclusion of phreatophyte eradication from the definition of water efficiency savings. Representative Becker responded to questions regarding the intent of the legislation. Discussion ensued regarding the potential for amending the bill to include the eradication of phreatophytes within its scope.

06:22 PM

Discussion ensued regarding the effect of Section 37-92-305 (3.3)(c), C.R.S., as stated in the bill. Discussion returned to what constitutes water efficiency savings under the bill.

06:26 PM

The committee recessed.

06:29 PM

The committee returned to order. Discussion continued regarding the effect of section 2 of the bill, and the creation of a new water right for water efficiency savings under the bill. Representative Becker responded to questions regarding requirements associated with a change of water right.

06:35 PM

The committee recessed.

06:35 PM

The committee returned to order. The following persons testified regarding Senate Bill 14-023:

06:36 PM -- Mr. Kevin Rein, representing the Division of Water Resources within the Department of Natural Resources, testified in support of the bill. Mr. Rein explained that the bill presents another tool for protecting instream water flows, and that his office is suitable for administering the provisions of the bill. Mr. Rein discussed certain concerns that were raised about the bill, and explained how these concerns were addressed. Mr. Aaron Citron, representing the Environmental Defense Fund, also testified in support of the bill. Mr. Citron discussed work undertaken by stakeholders in creating the legislation, and noted some organizations that support the bill. Mr. Citron discussed costs associated with creating more efficient water conveyance systems, and explained how the bill allows users to retain their water rights in certain situations under the bill. Discussion ensued regarding the recovery of water rights conveyed to the Colorado Water Conservation Board under the bill, and the effect of Section 37-92-305 (3.3)(c), as contained in the bill.

06:46 PM

Mr. Citron responded to questions regarding the benefits of an instream flow program, and the intent of Senate Bill 14-023. Mr. Rein responded to questions regarding the concept of "buy and dry," and actions undertaken by the legislature to allow diversion of agricultural water to municipalities on a temporary basis. Mr. Rein responded to further questions regarding the potential loss of water rights by agricultural users, which the bill seeks to rectify, and the most salient point of the bill.

06:56 PM

Mr. Rein responded to questions regarding the reasons for not allowing agricultural users to convey water saved through water efficiency savings to parties other than the Colorado Water Conservation Board under the bill. Mr. Citron provided input on this issue. Mr. Rein responded to questions regarding the ability of agricultural users to transfer or sell water efficiency savings under current law. Mr. Citron responded to questions regarding the economic and other incentives for water rights holders to transfer water to the Colorado Water Conservation Board under Senate Bill 14-023. Discussion ensued on this point.

07:09 PM

Discussion continued regarding the incentives for agricultural water users to transfer water under the bill. Discussion followed regarding the role of the Colorado Water Conservation Board. Mr. Rein responded to further questions regarding how the board funds the bill's initiatives. Mr. Rein and Representative Becker responded to questions regarding the impact of the bill on downstream water users, including out-of-state water users.

07:21 PM

Discussion continued regarding the effect of the bill on downstream water users. Mr. Citron responded to questions regarding instream flow programs in effect in other states. Discussion ensued about these state programs. Discussion returned to the benefits that accrue to agricultural water users who participate in the program created by the bill.

07:27 PM -- Mr. Nicholas Colglazier, representing the Colorado Farm Bureau, testified in opposition to Senate Bill 14-023. Mr. Colglazier explained that the bill constitutes a major change to Colorado water law, and changes made to water rights by the bill may injure certain holders. Mr. Chris Treese, representing the Colorado River Water Conservation District, testified in opposition to the bill. Mr. Treese provided background on instream water use, and explain how the bill changes the terms of this use. Mr. Treese expressed further concerns about the bill, and noted some municipalities in opposition to the bill. Mr. Treece responded to questions regarding the effect of the bill on downstream water rights, and the water levels that will be maintained at the lowest instream flow point under the bill.

07:39 PM

Discussion ensued regarding the effect of consumption and water efficiency savings on downstream flow levels under Senate Bill 14-023. Mr. Colglazier further clarified his organization's concerns about the bill in terms of water rights for intervening diverters. Discussion ensued regarding the definition of intervening water users. Mr. Colglazier responded to questions regarding differing opinions about the bill among the agricultural community. Representative Becker noted some amendment language provided for the bill by the Colorado Farm Bureau, and discussed the bureau's objections to the bill.

07:49 PM

Representative Becker continued to address the objections raised about the bill by the opponents. Representative Becker responded to questions regarding the custody of water rights transferred to the Colorado Water Conservation Board under the bill, and the effect of making water efficiency improvements by agricultural users under current law on the ability of the users to retain the saved water for agricultural purposes. Mr. Treese explained how an agricultural operator may expand its water use under current law. Discussion followed regarding the position of the Colorado Water Conservation Board on the bill. Mr. Treese provided background on his organization, and noted its position on the creation of instream flows.

08:00 PM

Mr. Treese responded to questions regarding the upper and lower terminus points of the water efficiency instream flows, and the typical instream flow length. Discussion returned to the effect of the bill on instream flow intervening diverters. Mr. Treece responded to questions regarding the position of the Colorado Water Congress on Senate Bill 14-023, and the voluntary nature of the bill. Discussion ensued regarding the potential for amending the bill to make it suitable to the opponents. Discussion returned to the position of the Colorado Water Conservation Board on the bill, and the relationship between the Department of Natural Resources and the board.

08:13 PM

Discussion returned to the nature of the opposition to the bill by the Colorado River Water Conservation District, and the potential for amending the bill to make it suitable to this opponent. Discussion ensued regarding certain rural entities that support the bill. Discussion returned to the potential for the bill to injure water rights holders adjacent to those donating water under the bill, and the relationship of the bill's program with the Governor's statewide water plan. Representative Gardner expressed certain concerns with the bill.

08:26 PM

The committee recessed.

08:26 PM

The committee returned to order. No amendments were offered to Senate Bill 14-023. Representative Becker provided closing remarks in support of the bill. Various committee members expressed their positions on the bill.


BILL:	SB14-023
TIME:	08:27:41 PM
MOVED:	Kagan
MOTION:	Refer Senate Bill 14-023 to the Committee of the Whole. The motion passed on a vote of 7-3.
SECONDED:	Lee
		VOTE
	Buckner	Yes
	Court	Yes
	Gardner	No
	Lawrence	No
	McLachlan	Yes
	Murray	No
	Pettersen	Yes
	Salazar	Yes
	Waller	Excused
	Lee	Yes
	Kagan	Yes

Final YES: 7 NO: 3 EXC: 1 ABS: 0 FINAL ACTION: PASS

08:35 PM -- SB14-206

Representative Singer, prime sponsor, presented Senate Bill 14-206, concerning criminal record sealing provisions, and, in connection therewith, relocating the record sealing provisions in a new part, clarifying when an arrest record can be sealed, and making other clarifying changes. Representative Singer explained the effect of the bill, and discussed its need. Representative Singer responded to questions regarding the nonsubstantive recodification of portions of statute by the bill. The following persons testified regarding Senate Bill 14-206:

08:42 PM -- Ms. Veronique Van Gheem, representing the Judicial Department, testified in support of the bill. Ms. Van Gheem discussed the need to engage in nonsubstantive recodification of criminal record sealing provisions for clarity. Ms. Van Gheen responded to questions regarding the potential effect of the bill on the ability of pro se litigants to understand criminal record sealing law.

08:44 PM -- Ms. Annmarie Jensen, representing crime victim organizations, testified from a neutral position, requesting that amendment L.005 be withdrawn. She explained why she supports the withdrawal of the amendment. Discussion ensued regarding the withdrawal of the amendment, and how best to move forward with the amendment in the future.

08:52 PM -- Mr. David Blake, representing the Attorney General's Office, testified in support of the bill.

08:53 PM

Representative Singer explained the effect of prepared amendment L.006 (Attachment C).

14HseJud0501AttachC.pdf


BILL:	SB14-206
TIME:	08:54:45 PM
MOVED:	Salazar
MOTION:	Adopt amendment L.006 (Attachment C). The motion passed without objection.
SECONDED:	Court
		VOTE
	Buckner
	Court
	Gardner
	Lawrence
	McLachlan
	Murray
	Pettersen
	Salazar
	Waller
	Lee
	Kagan

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


BILL:	SB14-206
TIME:	08:55:34 PM
MOVED:	Gardner
MOTION:	Refer Senate Bill 14-206, as amended, to the Committee of the Whole. The motion passed on a vote of 10-0.
SECONDED:	Salazar
		VOTE
	Buckner	Yes
	Court	Yes
	Gardner	Yes
	Lawrence	Yes
	McLachlan	Yes
	Murray	Yes
	Pettersen	Yes
	Salazar	Yes
	Waller	Excused
	Lee	Yes
	Kagan	Yes

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

08:56 PM -- SB14-203

Representatives May and Gardner, prime sponsors, presented Senate Bill 14-203, concerning the Office of the Respondent Parents' Counsel in cases of alleged child abuse and neglect. Representative Gardner explained the effect of the bill, and discussed its need. Representative May provided input on the bill. Representative May responded to questions regarding the fiscal impact of the bill.

09:02 PM

The following persons testified regarding Senate Bill 14-203:

09:02 PM -- Mr. Jerry Marroney, representing the Judicial Department, testified in support of the bill. Mr. Marroney explained the work that contributed to the creation of the legislation, and discussed its need. Mr. Marroney discussed some complications in providing counsel to indigent parents in child abuse and neglect cases. Mr. Marroney responded to questions regarding how respondent parents' counsel are appointed.

09:06 PM -- Ms. Dorothy Macias, representing the Office of the Child's Representative, testified in support of Senate Bill 14-203. Ms. Macias discussed the provision of counsel in dependency and neglect cases for indigent parents, and improvements in the provision of such services over the years. Ms. Macias explained the services that will be provided under the bill. Ms. Macias responded to questions regarding the population to be served under Senate Bill 14-203.

09:11 PM -- Ms. Sarah Ehrlich, representing Denver Human Services, testified in support of the bill. Ms. Ehrlich discussed the improvements that will accrue to the dependency and neglect judicial process under the bill, and noted the pay associated with acting as respondent parents' counsel. She discussed the recommendations of the Respondent Parents' Counsel Work Group.

09:15 PM

No amendments were offered to Senate Bill 14-203.


BILL:	SB14-203
TIME:	09:15:15 PM
MOVED:	Gardner
MOTION:	Refer Senate Bill 14-203 to the Committee on Appropriations. The motion passed on a vote of 10-0.
SECONDED:	Salazar
		VOTE
	Buckner	Yes
	Court	Yes
	Gardner	Yes
	Lawrence	Yes
	McLachlan	Yes
	Murray	Yes
	Pettersen	Yes
	Salazar	Yes
	Waller	Excused
	Lee	Yes
	Kagan	Yes

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

09:16 PM -- SB14-212

Representative Lee, prime sponsor, presented Senate Bill 14-212, concerning clarifying changes to the provisions related to best practices in bond setting. Representative Lee explained the effect of the bill, and discussed its need. Representative Lee responded to questions regarding the opposition of certain bail agents to the bill. Discussion ensued regarding the nature of this opposition, and a provision in the bill that guards against unjust enrichment.

09:28 PM

The following person testified regarding Senate Bill 14-212:

09:28 PM -- Ms. Maureen Cain, representing the Colorado Criminal Defense Bar, the County Sheriffs of Colorado, and the Colorado District Attorney's Council, testified in support of the bill. Committee members received a fact sheet in support of the bill (Attachment D). Ms. Cain provided some legislative history on bail bond setting, and further clarified the effect of each of the bill's provisions. Ms. Cain noted some organizations that support the bill. Ms. Cain responded to questions regarding provisions in the bill concerning factual findings associated with bonding premium refunds.

14HseJud0501AttachD.pdf

09:43 PM

No amendments were offered to Senate Bill 14-212.


BILL:	SB14-212
TIME:	09:43:51 PM
MOVED:	Lee
MOTION:	Refer Senate Bill 14-212 to the Committee of the Whole. The motion passed on a vote of 9-1.
SECONDED:	Pettersen
		VOTE
	Buckner	Yes
	Court	Yes
	Gardner	Yes
	Lawrence	No
	McLachlan	Yes
	Murray	Yes
	Pettersen	Yes
	Salazar	Yes
	Waller	Excused
	Lee	Yes
	Kagan	Yes

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

09:46 PM

The committee adjourned.