House Committee on Judiciary (02/12/2009)

Final
STAFF SUMMARY OF MEETING

HOUSE COMMITTEE ON JUDICIARY

Date:	02/12/2009	ATTENDANCE

Time:	01:32 PM to 05:46 PM	Apuan	X
		Court	*
Place:	HCR 0107	Gardner B.	X
		King	X
This Meeting was called to order by		Miklosi	*
	Representative Levy	Pace	*
		Roberts	X
This Report was prepared by		Ryden	X
	Jessika Shipley	Waller	X
		McCann	*
		Levy	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
HB09-1121 HB09-1207 HB09-1254 HB09-1137 HB09-1241 HB09-1144		Amended, Referred to the Committee of the Whole Amended, Referred to the Committee of the Whole Amended, Referred to the Committee of the Whole Amended, Referred to Appropriations Amended, Referred to the Committee of the Whole Committee Vote - Tie Vote

01:33 PM -- House Bill 09-1121

Representative King, prime sponsor, presented House Bill 09-1121 concerning the disposition of evidence collected in criminal cases. This bill repeals and re-enacts, with some changes, HB 08-1397. This summary highlights changes relative to current law, and does not address provisions retained from HB 08-1397. First, the bill reduces the number of cases where DNA evidence is required to be preserved. Specifically, non-sex offense misdemeanor cases would no longer be subject to DNA preservation requirements. Other evidence, unless it involves a class 1 felony or sex offense subject to indeterminate sentencing, may be disposed of with a court order.

The bill streamlines the existing process for a court to approve the disposal of DNA evidence in cases where neither the district attorney nor the defendant objects to such disposal. The bill also specifies that the defendant may petition the court for disposal of DNA evidence, and specifies a process for doing so. In cases where the evidence being held is property of the victim, the bill specifies a process for having the evidence returned to the victim. Finally, the bill provides a new level of detail regarding noticing requirements for the district attorney or the court when they want to dispose of DNA evidence.

HB 08-1397 required the preservation of all evidence that may contain DNA collected in cases resulting in a conviction for a Class 1 felony or a sex offense for the life of the defendant, and required court approval for the disposal of all other DNA evidence. If charges are not filed, the evidence must be preserved for the length of the applicable statute of limitations. Among other things, the bill also specified a process for the disposal of evidence, including notice requirements for the district attorney and the defendant's attorney.

01:37 PM -- Doug Wilson, Colorado State Public Defender, spoke in support of the bill. Mr. Wilson was a part of a working group that met in 2008 addressing DNA issues. He discussed prepared amendment L.002 (Attachment A), which allows a defendant to waive his or her right to preservation of DNA evidence under certain circumstances. He stated that the bill represents the best possible compromise on DNA evidence preservation that could be reached between prosecutors and defense attorneys. Mr. Wilson responded to questions from the committee about situations in which preservation of evidence is not necessary. The committee discussed the evidence covered by this bill. Representative Levy raised questions about the mechanics of the bill. Mr. Wilson discussed the typical process of handling DNA evidence in criminal cases. The committee held a lengthy discussion about the procedures outlined in the bill. Mr. Wilson talked about due process concerns raised by page 5, lines 6-11, bringing up state and federal case law.

02:07 PM -- Ted Tow, Colorado District Attorneys Council (CDAC), spoke in support of the bill. Mr. Tow discussed how the 2008 bill went awry from the district attorneys' perspective. He believes this bill balances the interests of retaining DNA with not overburdening local law enforcement agencies. He stated that this bill focuses on evidence that is relevant to the issue at hand. It also changes notice requirements and clarifies references to destruction as opposed to disposition. He addressed some of the questions raised during the committee discussion. Representative Levy raised concerns about the lack of a hearing requirement on page 6, lines 22-27. Mr. Tow indicated that such a requirement would result in a large fiscal impact from the Judicial Department. He addressed the due process concerns raised by Representative Levy.

02:25 PM -- Daniel Oates, Colorado Association of Chiefs of Police, spoke in support of the bill. Mr. Oates indicated that most police agencies are not destroying any evidence currently due to anxieties created by the 2008 bill. He stated that this bill relieves those anxieties.

02:28 PM -- Ron Sloan, Colorado Bureau of Investigation, spoke in support of the bill. Mr. Sloan stated that the DNA working group that met in 2008 brought together all of the stakeholders, including district attorneys, the public defender, the Colorado Criminal Defense Bar, chiefs of police, county sheriffs, and the Department of Public Safety. All of these groups have a vested interest in justice.

02:31 PM -- Doug Darr, County Sheriffs of Colorado, spoke in support of the bill. Sheriff Darr indicated that this bill is an improvement over the 2008 legislation.


BILL:	HB09-1121
TIME:	02:34:28 PM
MOVED:	King
MOTION:	Adopt prepared amendment L.002 (Attachment A). The motion passed without objection.
SECONDED:	Roberts
		VOTE
	Apuan
	Court
	Gardner B.
	King
	Miklosi
	Pace
	Roberts
	Ryden
	Waller
	McCann
	Levy

Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection

02:34 PM

Representative King wrapped up his presentation of the bill and asked for a favorable recommendation.


BILL:	HB09-1121
TIME:	02:36:43 PM
MOVED:	King
MOTION:	Refer House Bill 09-1121, as amended, to the Committee of the Whole with a favorable recommendation. The motion passed on a vote of 11-0.
SECONDED:	Roberts
		VOTE
	Apuan	Yes
	Court	Yes
	Gardner B.	Yes
	King	Yes
	Miklosi	Yes
	Pace	Yes
	Roberts	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes

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

02:37 PM -- House Bill 09-1207

Representative C. Gardner, prime sponsor, presented House Bill 09-1207 concerning procedures to enforce a lien related to real property. The bill makes a number of changes related to real estate foreclosures which focus primarily on the operations and procedures of the public trustee and associated parties involved in foreclosure proceedings and the enforcement of a lien.

Sections 3, 4, 8, 9, 10, 12, 13, 19, 20, 21, 22, 23, and 24 take effect September 1, 2009; the remainder takes effect January 1, 2010. The bill is subject to the filing of a referendum petition against it during the 90-day period after final adjournment of the General Assembly. Provisions of the act shall apply to the foreclosure of any deed of trust or other lien with respect to which a notice of election and demand or lis pendens is recorded in the office of the clerk and recorder of the county where the property or a portion of the property is located on or after the applicable effective date of the act.

02:42 PM -- Carol Snyder and Bob Sagel, Colorado Public Trustees, spoke in support of the bill. Ms. Snyder explained how the recent recodification of procedures in the area of real estate foreclosures created inconsistencies and inefficiencies that are cleared up by this bill. She responded to questions from the committee about deficiency judgments. The committee discussed prepared amendment L.001 (Attachment B) and L.005 (Attachment C).

02:53 PM -- Caren Castle, Castle, Meinhold, and Stawiarski, spoke in support of the bill. Ms. Castle's firm represents lenders and banks in foreclosure proceedings in Colorado. Her firm was involved in drafting the bill. She discussed the Colorado public trustee system, which is the only one of its kind in the country. She stated her belief that it is a very neutral system. Ms. Castle talked about the significant changes made to Colorado foreclosure law as of January 1, 2008, and mentioned that a number of inconsistencies, ambiguities, and problems have come to light since that time. This bill provides clarity and addresses the issues.

02:56 PM -- Jose Vasquez, Colorado Legal Services, took no position on the bill. Mr. Vasquez works with individuals involved in foreclosure proceedings and he wants to ensure that borrowers' rights are preserved.


BILL:	HB09-1207
TIME:	03:08:19 PM
MOVED:	Roberts
MOTION:	Adopt prepared amendment L.001 (Attachment B). The motion passed without objection.
SECONDED:	Gardner B.
		VOTE
	Apuan
	Court
	Gardner B.
	King
	Miklosi
	Pace
	Roberts
	Ryden
	Waller
	McCann
	Levy

Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB09-1207
TIME:	03:08:38 PM
MOVED:	Gardner B.
MOTION:	Adopt prepared amendment L.005 (Attachment C). The motion passed without objection.
SECONDED:	Roberts
		VOTE
	Apuan
	Court
	Gardner B.
	King
	Miklosi
	Pace
	Roberts
	Ryden
	Waller
	McCann
	Levy

Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection

03:08 PM

Representative C. Gardner wrapped up his presentation of the bill and asked for a favorable recommendation.


BILL:	HB09-1207
TIME:	03:10:12 PM
MOVED:	Roberts
MOTION:	Refer House Bill 09-1207, as amended, to the Committee of the Whole with a favorable recommendation. The motion passed on a vote of 10-0, with one excused.
SECONDED:	Court
		VOTE
	Apuan	Yes
	Court	Yes
	Gardner B.	Yes
	King	Yes
	Miklosi	Excused
	Pace	Yes
	Roberts	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes

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

03:11 PM -- House Bill 09-1254

Representative Judd, prime sponsor, presented House Bill 09-1254 concerning additional consumer protections relating to like-kind exchanges mediated by exchange facilitators. The bill adds a new series of deceptive trade practices to the Colorado Consumer Protection Act for misconduct committed by exchange facilitators who mediate like-kind exchanges under 26 U.S.C. sec. 1031. An exchange facilitator is effectively required to serve as a responsible custodian by maintaining adequate security for funds and properly accounting for funds. The bill also prohibits various misconduct such as fraud, misrepresentation, and commingling of funds. Like-kind exchanges are permitted under Section 1031 of the I.R.S. Code so a property owner can avoid capital gains taxes when selling real estate. To avoid a capital gains tax, a seller must engage an exchange facilitator who holds sales proceeds and then applies the funds to the purchase of like-kind property.

Representative Judd responded to committee questions about the bill.

03:30 PM -- Brent Abrahm, Federation of Exchange Accommodators (FEA), spoke in support of the bill. Mr. Abrahm discussed the FEA effort to create some conformity between the states with regard to consumer protection.

03:32 PM -- Abbas Rajabi, Grande Investment, spoke in support of the bill. Mr. Rajabi related details of his experience with a like-kind exchange, in which his money was stolen. He indicated that this is a widespread problem and regulation is necessary to prevent the same thing happening to others.

03:35 PM

Representative Judd explained prepared amendment L.002 (Attachment D), which simply cleans up some of the language in the bill.


BILL:	HB09-1254
TIME:	03:35:42 PM
MOVED:	Waller
MOTION:	Adopt prepared amendment L.002 (Attachment D). The motion passed without objection.
SECONDED:	Court
		VOTE
	Apuan
	Court
	Gardner B.
	King
	Miklosi
	Pace
	Roberts
	Ryden
	Waller
	McCann
	Levy

Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection

03:36 PM

Representative Judd asked the committee to consider prepared amendment L.003 (Attachment E), which addresses Representative Levy's concerns about awkward language in the bill on pages 6 and 9.


BILL:	HB09-1254
TIME:	03:37:23 PM
MOVED:	Levy
MOTION:	Adopt prepared amendment L.003 (Attachment E). The motion passed without objection.
SECONDED:	McCann
		VOTE
	Apuan
	Court
	Gardner B.
	King
	Miklosi
	Pace
	Roberts
	Ryden
	Waller
	McCann
	Levy

Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection

03:37 PM

Representative Judd wrapped up his presentation of the bill and asked for a favorable recommendation.


BILL:	HB09-1254
TIME:	03:38:16 PM
MOVED:	Apuan
MOTION:	Refer House Bill 09-1254, as amended, to the Committee of the Whole with a favorable recommendation. The motion passed on a vote of 10-0, with 1 excused.
SECONDED:	Waller
		VOTE
	Apuan	Yes
	Court	Yes
	Gardner B.	Yes
	King	Yes
	Miklosi	Excused
	Pace	Yes
	Roberts	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes

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

03:40 PM -- House Bill 09-1137

Representative Judd returned to the committee to discuss House Bill 09-1137 concerning gambling intercepts. The bill was previously considered and amended by prepared amendment L.002. He distributed a fact sheet about the bill (Attachment F) and prepared amendment L.003 with a preamended version of the bill (Attachment G).


BILL:	HB09-1137
TIME:	03:45:15 PM
MOVED:	Court
MOTION:	Adopt prepared amendment L.003 (Attachment G). The motion failed because a substitute motion was made.
SECONDED:	McCann
		VOTE
	Apuan
	Court
	Gardner B.
	King
	Miklosi
	Pace
	Roberts
	Ryden
	Waller
	McCann
	Levy

Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: TIE


BILL:	HB09-1137
TIME:	03:49:28 PM
MOVED:	Gardner B.
MOTION:	SUBSTITUTE MOTION: Adopt prepared amendment L.005 (Attachment H). The motion passed on a vote of 6-4.
SECONDED:	Pace
		VOTE
	Apuan	Yes
	Court	No
	Gardner B.	Yes
	King	Yes
	Miklosi	Excused
	Pace	Yes
	Roberts	Yes
	Ryden	No
	Waller	Yes
	McCann	No
	Levy	No

Not Final YES: 6 NO: 4 EXC: 1 ABS: 0 FINAL ACTION: PASS


BILL:	HB09-1137
TIME:	03:51:38 PM
MOVED:	Gardner B.
MOTION:	Refer House Bill 09-1137, as amended, to the Committee on Appropriations with a favorable recommendation. The motion passed on a vote of 10-0, with 1 excused.
SECONDED:	Waller
		VOTE
	Apuan	Yes
	Court	Yes
	Gardner B.	Yes
	King	Yes
	Miklosi	Excused
	Pace	Yes
	Roberts	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes

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

03:53 PM -- House Bill 09-1241

Representative Roberts, prime sponsor, presented House Bill 09-1241 concerning Title 15 of the Colorado Revised Statutes. The bill enacts the Uniform Principal and Income Act of 1955 as it existed at the time of the adoption of the Uniform Principal and Income Act of 2000. The bill limits the applicability of the 1955 act to trusts and other interests that are not subject to the 2000 act. The 1955 act is applied retroactively for life estates for which there is no applicable law for the interim from the adoption of the 2000 act to the present. Further, the bill allows the holders of life estates to elect against the applicability of the 1955 act. Representative Roberts distributed prepared amendments L.001 (Attachment I) and L.002 (Attachment J).

03:58 PM -- Eugene Zuspann, Colorado Bar Association, spoke in support of the bill. Mr. Zuspann explained the Uniform Principal and Income Act and how it differs from current Colorado law.

04:02 PM -- Bob Steenrod, Colorado Bar Association, spoke in support of the bill. Mr. Steenrod discussed the procedures for handling an estate in Colorado and how the bill improves those procedures.

04:08 PM -- Kevin Millard, Colorado Bar Association, spoke in support of the bill. He spoke in favor of Section 7 of the bill dealing with how a parent appoints a guardian for their children. The bill strikes the requirement for witnesses and a notary, essentially making it easier for parents to appoint guardians for their children.

04:09 PM

Representative Roberts wrapped up her presentation of the bill and asked for a favorable recommendation.


BILL:	HB09-1241
TIME:	04:10:05 PM
MOVED:	Gardner B.
MOTION:	Adopt prepared amendment L.001 (Attachment I). The motion passed without objection.
SECONDED:	Roberts
		VOTE
	Apuan
	Court
	Gardner B.
	King
	Miklosi
	Pace
	Roberts
	Ryden
	Waller
	McCann
	Levy

Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB09-1241
TIME:	04:10:19 PM
MOVED:	Roberts
MOTION:	Adopt prepared amendment L.002 (Attachment J). The motion passed without objection.
SECONDED:	Waller
		VOTE
	Apuan
	Court
	Gardner B.
	King
	Miklosi
	Pace
	Roberts
	Ryden
	Waller
	McCann
	Levy

Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB09-1241
TIME:	04:10:32 PM
MOVED:	Roberts
MOTION:	Refer House Bill 09-1241, as amended, to the Committee of the Whole with a favorable recommendation. The motion passed on a vote of 9-0, with 2 excused.
SECONDED:	Court
		VOTE
	Apuan	Yes
	Court	Yes
	Gardner B.	Yes
	King	Yes
	Miklosi	Excused
	Pace	Excused
	Roberts	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes

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

04:11 PM -- House Bill 09-1144

Representative Bradford, prime sponsor, explained the provisions of House Bill 1144 concerning mandatory sentencing provisions for a defendant convicted of a sex offense against a child 14 years or younger. The bill requires a court to impose a mandatory minimum sentence of incarceration of at least 20 years, but no more than 30 years, for an offender who commits a sexual assault on a child when the child is:

14 years old or younger; and
7 years younger than the offender at the time of the offense.

Current law allows for indeterminate sentencing of many serious sex offenders for a maximum period of the offender's natural life. This bill would not change the maximum sentence; it would instead impose a minimum sentence. In the event that an offender sentenced pursuant to this bill is released on parole, the State Board. She distributed a packet of materials to the committee (Attachment K)). Representative Bradford responded to questions from the committee related to how this bill fits into the current laws related to sexual assaults.

04:18 PM -- Doug Wilson spoke in opposition to the bill. Mr. Wilson discussed the unintended consequences of the bill, which include incarceration for consensual sexual touching between a 14 year old and a 21 year old. He talked about current sentencing laws with regard to sex offenders and how sex offenders do not receive good time credit and only receive earned time if they go through treatment. He stressed that no sex offenders actually serve their minimum sentence, but actually serve more time in almost every case. Mr. Wilson responded to questions from the committee about sentencing and treatment for sex offenders in Colorado.

04:32 PM -- Maureen Cain, Colorado Criminal Defense Bar, spoke in opposition to the bill. Ms. Cain stated that mandatory minimum sentences are emotionally desirable, but are not necessarily the best thing for society. She talked about tools for managing sex offenders, focusing on treatment and supervision as the most effective. She discussed studies regarding recidivism of sex offenders, which show that they recidivate at a lower rate than other felons. She stressed the need to sort sex offenders based on risk at the point of sentencing. Approximately 80 percent of sex offenders assault victims who are known to them. Some victims are unwilling to send a family member to prison for the minimum period of time. When sex offenses are not reported, the offenders will not receive treatment.

04:41 PM -- Lauren Croucher, Colorado Coalition Against Sexual Assault, spoke in opposition to the bill. Ms. Croucher reiterated Ms. Cain's point about victims not reporting sex offenses committed by someone known to the victim. Families may pressure children not to report abuse if the possible penalty is severe.

04:45 PM -- Ted Tow spoke in opposition to the bill. Mr. Tow lauded Representative Bradford for her goals in bringing the bill. He has extensive experience in prosecuting sex offenders who offended against children. He discussed the various penalties for sex offenses, including lifetime probation, indeterminate prison sentences, and lifetime parole. Sex offenders are subject to very close supervision, with the possibility of a lifetime prison sentence if probation or parole conditions are violated. Mr. Tow discussed the mandatory penalties for a pattern of abuse and crimes of violence. As a prosecutor, he had to consider the fragility of victims and their ability to testify at trial. He indicated that this bill removes flexibility from prosecution and he feels that the mandatory sentences under current law are sufficient to punish sex offender. He responded to questions from the committee about case law requiring victims to testify and about the dynamics of potential plea bargains if the bill passes.

05:05 PM -- Michael Corn, representing himself, spoke in opposition to the bill. Mr. Corn is a member of the Colorado Criminal Justice Reform Coalition. He stated his belief that this bill will not do anything to rehabilitate criminals.

05:06 PM -- Donna Marie, representing herself, spoke in support of the bill. Ms. Marie read a prepared statement that addressed the harm caused to children by sexual assault.

05:11 PM -- Cindy Hannick, representing herself, spoke in support of the bill. Ms. Hannick related details of her son's sexual assault and the case against the individuals accused. She believes that a pedophile will never stop offending without intervention by the justice system. She discussed the continuing effects of the assault on her son. He has been admitted to Ft. Logan and has suicidal thoughts. She asked for justice for her son.

05:17 PM -- Shawn Hannick, representing himself, spoke in support of the bill. Mr. Hannick related details of his brother's sexual assault. He expressed his belief that the state of Colorado does not care about children are who are molested.

05:20 PM -- Deb Clair, representing herself, spoke in support of the bill. Ms. Clair is a retired Denver police officer and an advocate for child victims of sexual assault. She stressed that children do not have a voice and rely on adults to protect them. She expressed sadness that Colorado has not passed Jessica's Law. She stated that sexual predators are everywhere and discussed her experience investigating sex crimes against children. She talked about the rape and murder of a three-year-old girl and asked for the committee to pass the bill in order to protect children. Ms. Clair responded to questions from the committee regarding the possibility of rehabilitating child sex offenders. She expressed her opinion that they cannot be rehabilitated.

05:30 PM

Representative Bradford wrapped up her presentation of the bill and asked for a favorable recommendation. She addressed the fiscal note and stated that it does not take into account the cost of each victim in terms of therapy and other costs. Committee members commented on the bill.


BILL:	HB09-1144
TIME:	05:43:03 PM
MOVED:	Gardner B.
MOTION:	Refer House Bill 09-1144 to the Committee on Appropriations with a favorable recommendation. Committee members made comments on their positions on the bill. The motion failed on a vote of 4-6, with 1 excused.
SECONDED:	King
		VOTE
	Apuan	Yes
	Court	No
	Gardner B.	Yes
	King	Yes
	Miklosi	Excused
	Pace	No
	Roberts	No
	Ryden	No
	Waller	Yes
	McCann	No
	Levy	No

Not Final YES: 4 NO: 6 EXC: 1 ABS: 0 FINAL ACTION: FAIL


BILL:	HB09-1144
TIME:	05:43:56 PM
MOVED:	Pace
MOTION:	Postpone indefinitely House Bill 09-1144. The motion failed on a vote of 5-5, with 1 excused.
SECONDED:	Levy
		VOTE
	Apuan	No
	Court	Yes
	Gardner B.	No
	King	No
	Miklosi	Excused
	Pace	Yes
	Roberts	No
	Ryden	Yes
	Waller	No
	McCann	Yes
	Levy	Yes

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

05:45 PM

Representative Levy adjourned the committee.