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H_JUD_2016A 03/24/2016 01:36:54 PM Committee Summary

Final

STAFF SUMMARY OF MEETING



HOUSE COMMITTEE ON JUDICIARY

Date: 03/24/2016
ATTENDANCE
Time: 01:36 PM to 09:32 PM
Carver
X
Court
X
Place: HCR 0112
Dore
X
Foote
X
This Meeting was called to order by
Lawrence
X
Representative Kagan
Lundeen
X
Melton
*
This Report was prepared by
Salazar
*
Bo Pogue
Willett
X
Lee
X
Kagan
X
X = Present, E = Excused, A = Absent, * = Present after roll call
Bills Addressed: Action Taken:
HB16-1309

HB16-1311

HB16-1213

HB16-1396

HB16-1320
Referred to the Committee of the Whole

Amended, Referred to the Committee of the Whole

Postponed Indefinitely

Referred to the Committee of the Whole

Witness Testimony and/or Committee Discussion Only





01:37 PM -- HB16-1309



The committee was called to order. A quorum was present. Representative Lontine, prime sponsor, presented House Bill 16-1309, concerning a defendant's right to counsel in certain cases considered by municipal courts. Representative Lontine explained the effect of the bill and discussed its need. Representative Lontine responded to questions regarding the impact of the bill on local control and the U.S. Supreme Court decision in Rothgery v. Gillespie County. Discussion ensued regarding jurisprudence on the issues of the right to counsel and local control. The following persons testified regarding HB 16-1309:



01:50 PM --
Mr. Jason Meyers, representing the City of Fort Morgan, testified in opposition to the bill. Mr. Meyers discussed the impact of the bill on rural municipalities, and questioned the necessity of the legislation. Mr. Meyers responded to questions regarding the number of offenses in Fort Morgan that are jailable offenses, and the volume of such offenses handled by the courts in Fort Morgan. Mr. Meyers responded to questions regarding costs to municipalities associated with abiding by the bill, and potential constitutional violations for failure to provide counsel.





02:03 PM



Discussion continued regarding the provision of counsel by municipalities in criminal cases. Mr. Meyers responded to questions regarding the process observed in Fort Morgan for criminal cases, and what constitutes a critical phase of a criminal proceeding.













02:14 PM --
Judge Anne Stavig, representing the City of Lakewood, testified in opposition to the bill. Judge Stavig discussed the timing of court appearances and bail opportunities for criminal charges, and noted a potential unintended consequence if the bill were to pass. Judge Stavig responded to questions regarding action taken at initial hearings for criminal charges. Discussion returned to what constitutes a critical proceeding.





02:28 PM



Discussion continued regarding the significance of the initial phase of a criminal proceeding, the decisions made at the initial phase, and the constitutionality of providing counsel to defendants for the initial phase. Judge Stavig reiterated her objections to HB 16-1309. Judge Stavig responded to questions regarding the steps taken during an advisement process. Discussion ensued regarding the caseload in Judge Stavig's district as compared to other jurisdictions in the state.





02:46 PM



Judge Stavig continued to respond to questions regarding the criminal cases handled in her courtroom, and the advisements she issues to defendants during an initial hearing. Judge Stavig responded to further questions regarding how indigency is determined in her courtroom.



02:56 PM --
Ms. Tamara Wolfe, representing the Colorado Organization for Municipal Court Administration, testified in opposition to HB 16-1309. Ms. Wolfe discussed the costs to be borne local courts as a result of the bill's passage. Discussion ensued regarding the fiscal impact of the bill. Ms. Wolfe responded to questions regarding the fiscal impact of the bill in her jurisdiction, and the number of cases handled by her jurisdiction that fall within the scope of the bill.



03:01 PM --
Judge Robert Frick, representing the Colorado Municipal Judges Association, testified in opposition to the bill. Judge Frick discussed his service as a part-time municipal judge, the types of cases he sees in this capacity, and how they are handled in his court. He discussed the difficulties that small municipal courts would face in complying with HB 16-1309. Judge Frick responded to questions regarding at which point in the judicial process a defendant has a right to counsel, and whether a video court appearance could constitute an initial court appearance.





03:17 PM



Judge Frick responded to questions regarding what constitutes a jailable offense at the municipal level, and the reasons for granting bail for municipal offenses.



03:20 PM --
Mr. Richard Orf, representing the Associated Governments of Northwest Colorado, testified in opposition to the bill. Mr. Orf discussed the fiscal impact of the bill on small municipalities.



03:22 PM --
Ms. Carrie Thompson, representing the Colorado Criminal Defense Bar, testified in support of the bill. Ms. Thompson read letters authored by those not in attendance supporting the bill. Ms. Thompson discussed the applicability of the Rothgery decision, and the impact of pretrial incarceration on future outcomes. Ms. Thompson discussed the effectiveness of different types of bail arrangements. Ms. Thompson responded to questions regarding when counsel must be provided to a defendant from a constitutional perspective.

















03:37 PM



Discussion continued regarding when the right of representation in a criminal proceeding attaches from a constitutional perspective. Discussion ensued regarding arrests for failure to appear in court.



03:45 PM --
Ms. Elizabeth Gillespie, representing the City of Aurora, testified in support of HB 16-1309. Ms. Gillespie addressed questions raised and assertions made during earlier testimony. Ms. Gillespie discussed the type of advice she is able to dispense to her clientele during initial court appearances, and addressed constitutional issues raised by the bill. Ms. Gillespie responded to questions regarding the population in Aurora that is not granted personal recognizance bonds.



03:57 PM --
Ms. Denise Maes and Ms. Rebecca Wallace, representing the ACLU, testified in support of the bill. Ms. Maes discussed the circumstances under which legal counsel must be supplied in a criminal case, and variation in how municipalities handle initial court appearances. Ms. Maes rebutted certain arguments made by the bill's opponents. Discussion ensued regarding the fiscal impact of the bill, including costs to be borne by municipalities as a result of the bill. Discussion followed regarding the criticality of the initial appearance of a criminal defendant in a municipal proceeding.





04:10 PM



Discussion ensued regarding the constitutional issues associated with HB 16-1309. Ms. Maes responded to questions regarding why the public defender statute requires a finding of indigency before a public defender is assigned, and why the ACLU has not pursued litigation on constitutional grounds that meets the objectives of the bill. Ms. Wallace and Ms. Maes responded to questions regarding what constitutes a reasonable amount of time for providing counsel to defendants.



04:22 PM --
Mr. Tom Raynes, representing the Colorado District Attorneys' Council, testified on the bill from a neutral perspective. Mr. Raynes addressed assertions made during earlier testimony. Mr. Raynes responded to questions regarding the impact of legislation passed during previous legislative sessions in reaction to the Rothgery decision.

















































04:27 PM



Discussion ensued regarding the potential for including in the bill an indigency determination requirement to trigger assignment of counsel for an initial appearance by a defendant on a municipal charge. No amendments were offered to HB 16-1309. Various committee members provided their positions on HB 16-1309. Representative Lontine provided closing remarks in support of the bill.

BILL: HB16-1309
TIME: 04:42:36 PM
MOVED: Lee
MOTION: Refer House Bill 16-1309 to the Committee of the Whole. The motion passed on a vote of 6-5.
SECONDED: Salazar
VOTE
Carver
No
Court
Yes
Dore
No
Foote
Yes
Lawrence
No
Lundeen
No
Melton
Yes
Salazar
Yes
Willett
No
Lee
Yes
Kagan
Yes
Final YES: 6 NO: 5 EXC: 0 ABS: 0 FINAL ACTION: PASS





04:58 PM



The committee recessed.





05:03 PM -- HB16-1311



The committee returned to order. Representative Salazar, prime sponsor, presented House Bill 16-1311, concerning court orders requiring payment of monetary amounts. Representative Salazar explained the effect of the bill and discussed its need. Representative Salazar responded to questions regarding the effect of the bill on an order requiring restitution payment, and on criminal fines and penalties. The following persons testified regarding HB 16-1311:























05:28 PM --
Mr. Mark Hurlbert representing the Colorado District Attorneys' Council, and Mr. Scott Turner, representing the Colorado Organization for Victim Assistance and the Department of State, testified in opposition to the bill. Mr. Turner and Mr. Hurlbert discussed some concerns with the bill, and clarified that they are working with the bill's sponsor to address these concerns. Discussion ensued regarding potential amendments for addressing these concerns. Mr. Turner responded to questions regarding hardship exemptions in the bill Discussion ensued on this point.



05:40 PM --
Judge Richard Weinberg, representing the City of Aurora and the Colorado Municipal Judges Association, testified in opposition to the bill. Judge Weinberg discussed the effect of legislation passed in 2014 pertaining to imposing a sentence for failing to make a monetary payment, and explained how HB 16-1311 changes the established procedure. Judge Weinberg discussed the fiscal impact of the bill on local governments, and explained how certain classes of individuals may be able to avoid taking responsibility for crimes under the bill. Judge Weinberg responded to questions regarding a fact pattern that would involve ten days in jail for avoiding a fine.





05:51 PM



Judge Weinberg responded to questions regarding the potential for pursuing unpaid fines through the collections system, and alternatives available to those who owe monetary payments and who fail to appear in court. Discussion returned to the effect of legislation adopted in 2014 pertaining to incarceration for failure to make a monetary payment.





06:02 PM



Judge Weinberg responded to questions regarding assertions he made during his earlier testimony, including the cost to issue bench warrants as compared to the costs associated with incarcerating a person for failure to pay a fine. Discussion returned to the effect of earlier legislation on the issue. Judge Weinberg responded to questions regarding the need for a court to make a finding of undue hardship before accepting a plea concerning failure to make a court-ordered payment under the bill.





06:16 PM



The committee recessed.





06:24 PM



The committee returned to order.



06:24 PM --
Ms. Denise Maes and Ms. Rebecca Wallace, representing the ACLU, testified in support of the bill. Ms. Maes reiterated the effect of the legislation, and addressed statements made during the testimony of Judge Weinberg. Ms. Maes discussed a loophole in the 2014 legislation being exploited by municipal courts, and provided an example of this loophole. Ms. Maes provided other examples of imprisonment being imposed based on the failure to pay fines. Ms. Wallace responded to questions regarding how to ensure municipal courts comply with laws pertaining to satisfying fine payments. Discussion ensued on this point.















06:39 PM



Ms. Maes and Ms. Wallace responded to questions regarding one of the examples of failure-to-appear exploitation by a municipal court posed by Ms. Maes. Ms. Wallace responded to questions regarding the bill's impact on contempt-of-court proceedings for payment failure. Discussion returned to the need for a court to make an undue hardship finding before accepting a plea.



06:49 PM --
Mr. James Fisher, representing himself, testified in support of HB 16-1311. Mr. Fisher read a statement concerning his capture in the City of Aurora's court-administered debt payment system. Mr. Fisher responded to questions regarding his communications with the Aurora Municipal Court about his attempts to adhere to a plan to pay his fines. Mr. Fisher responded to questions regarding how his fines increased.



07:00 PM --
Ms. Elizabeth Gillespie, representing the Aurora Public Defender, testified in support of the bill. Ms. Gillespie addressed earlier questions about how one communicates with the Aurora Municipal Court, and described the process by which overdue payments are handled by that court. Ms. Gillespie responded to questions regarding how a defendant communicates with the Aurora Municipal Court, and the availability of counsel during these communications. Ms. Gillespie responded to further questions regarding the court's fine structure.





07:09 PM



Representative Salazar explained the effect of amendment L.001 (Attachment A). Representative Salazar responded to questions regarding the ability of a defendant to appear in court and request a fee reduction under the amendment.



16HouseJud0324AttachA.pdf16HouseJud0324AttachA.pdf
















































BILL: HB16-1311
TIME: 07:10:41 PM
MOVED: Salazar
MOTION: Adopt amendment L.001 (Attachment A). The motion passed without objection.
SECONDED: Melton
VOTE
Carver
Court
Dore
Foote
Lawrence
Lundeen
Melton
Salazar
Willett
Lee
Kagan
YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection





































































07:12 PM



Representative Lee explained the effect of amendment L.002 (Attachment B).



16HouseJud0324AttachB.pdf16HouseJud0324AttachB.pdf

BILL: HB16-1311
TIME: 07:13:12 PM
MOVED: Lee
MOTION: Adopt amendment L.002 (Attachment B). The motion passed without objection.
SECONDED: Court
VOTE
Carver
Court
Dore
Foote
Lawrence
Lundeen
Melton
Salazar
Willett
Lee
Kagan
YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection



















































07:14 PM



Representative Salazar explained the effect of amendment L.003 (Attachment C).



16HouseJud0324AttachC.pdf16HouseJud0324AttachC.pdf

BILL: HB16-1311
TIME: 07:14:32 PM
MOVED: Salazar
MOTION: Adopt amendment L.003 (Attachment C). The motion passed without objection.
SECONDED: Melton
VOTE
Carver
Court
Dore
Foote
Lawrence
Lundeen
Melton
Salazar
Willett
Lee
Kagan
YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection



















































07:16 PM



Representative Salazar provided closing remarks in support of HB 16-1311. Various committee members provided their positions on the bill. Discussion ensued regarding the potential to further amend the bill to address concerns raised by certain stakeholders.

BILL: HB16-1311
TIME: 07:17:18 PM
MOVED: Salazar
MOTION: Refer House Bill 16-1311, as amended, to the Committee of the Whole. The motion passed on a vote of 10-0.
SECONDED: Melton
VOTE
Carver
Yes
Court
Yes
Dore
Yes
Foote
Yes
Lawrence
Yes
Lundeen
Yes
Melton
Yes
Salazar
Yes
Willett
Excused
Lee
Yes
Kagan
Yes
Final YES: 10 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS





















































07:26 PM -- HB16-1213



Representative Lawrence, prime sponsor, presented House Bill 16-1213, concerning a civil remedy for certain damages caused by an intrusion committed through the use of a device. Representative Lawrence asked that the bill be postponed indefinitely.

BILL: HB16-1213
TIME: 07:27:25 PM
MOVED: Lawrence
MOTION: Postpone House Bill 16-1213 indefinitely. The motion passed on a vote of 10-0.
SECONDED: Court
VOTE
Carver
Yes
Court
Yes
Dore
Yes
Foote
Yes
Lawrence
Yes
Lundeen
Yes
Melton
Yes
Salazar
Yes
Willett
Excused
Lee
Yes
Kagan
Yes
Final YES: 10 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS





07:28 PM -- HB16-1396



Representative Lebsock, prime sponsor, presented House Bill 16-1396, concerning changing outdated refrences to aliens in the Colorado Revised Statutes with respect to Colorado programs. Representative Lebsock explained the effect of the bill and discussed its need. Representative Lebsock responded to questions regarding the effect of the bill on substantive law, and the potential for language stricken by the bill to find its way into statute in the future. Representative Lebsock responded to further questions regarding the impact of the bill on language used in federal law, and the process by which language is used in future legislation. Representative Lebsock explained the genesis of the legislation. The following person testified regarding HB 16-1396:



07:39 PM --
Mr. Antonio Esquibel, representing himself, testified in support of the bill. Mr. Esquibel explained that the term "illegal immigrant" is not an accurate legal concept, and discussed the importance of using accurate terms.



























07:43 PM



No amendments were offered to HB 16-1396. Various committee members provided their positions on the bill.

BILL: HB16-1396
TIME: 07:44:02 PM
MOVED: Court
MOTION: Refer House Bill 16-1396 to the Committee of the Whole. The motion passed on a vote of 9-1.
SECONDED: Melton
VOTE
Carver
No
Court
Yes
Dore
Yes
Foote
Yes
Lawrence
Yes
Lundeen
Yes
Melton
Yes
Salazar
Yes
Willett
Excused
Lee
Yes
Kagan
Yes
Final YES: 9 NO: 1 EXC: 1 ABS: 0 FINAL ACTION: PASS





07:47 PM -- HB16-1320



Representative Foote, prime sponsor, presented House Bill 16-1320, concerning the regulation of massage therapy to modify practices that are linked to criminal behavior. Representative Foote explained the effect of the bill, and requested that testimony be taken on the bill and that the bill be laid over for work on amendments.



07:50 PM --
Mr. Joe Neguse, Executive Director for the Department of Regulatory Agencies (DORA), testified in support of the bill. Director Neguse laid out DORA's plan for addressing human trafficking through the bill, and discussed the stakeholder process associated with the bill's drafting. Director Neguse responded to questions regarding what constitutes aiding and abetting practices prohibited by the bill.



07:55 PM --
Mr. Russell Klein, representing the Office of the Attorney General, testified in support of the bill. Mr. Klein discussed his office's role in litigating massage therapy licensure, and illegal sex trafficking that takes place under the guise of massage therapy. Mr. Klein discussed the benefits of the legislation in addressing sex trafficking. Mr. Klein responded to questions regarding the scope of sex trafficking that takes place under the guise of massage therapy, and current laws that address the issue. Discussion ensued regarding certain broad language in the bill, and the source of the language.















08:08 PM



Mr. Klein responded to questions regarding DORA's jurisdiction in the area of massage therapy, and the impact of the bill on licensing of individual massage therapists. Discussion returned to what behavior constitutes aiding or abetting under the bill.



08:11 PM --
Ms. Kathryn Stewart, representing the American Massage Therapy Association, testified in support of HB 16-1320. Ms. Stewart discussed efforts to regulate the practice of massage therapy. Ms. Stewart responded to questions regarding types of practices that would continue to be exempt from regulation under the umbrella of massage therapy.



08:17 PM --
Ms. Stephane Benitez, representing the FBI and the Colorado Trafficking and Organized Crime Coalition, testified in support of the bill. Ms. Benitez discussed efforts to investigate prostitution and human trafficking activities that operate as massage therapy, and provided input on how the bill will support these efforts. Discussion returned to the aiding and abetting language in the bill. Ms. Benitez responded to questions regarding charges that can be brought under the bill, and the role of organized crime in sex trafficking through massage parlors.





08:30 PM



Discussion ensued regarding whether the problem of addressing sex trafficking through massage parlors is enforcement versus regulatory in nature. Ms. Benitez responded to questions regarding the scope of the sex trafficking problem, and the potential for pursuing the illegal business through racketeering or other statutes.



08:35 PM --
Mr. Jim DeLashmutt, representing the City of Lakewood, testified in support of HB 16-1320. Mr. DeLashmutt discussed efforts to combat illegitimate massage operations, and explained how the bill will help further these efforts.



08:39 PM --
Ms. Maureen Cain, representing the Colorado Criminal Defense Institute and the Criminal Relief Project, testified in support of the bill as amended. Ms. Cain raised some concerns about the bill, which she said may be addressed through amendment, and discussed efforts that the criminal defense community has supported under the idea that such efforts would thwart criminal activity. Ms. Cain responded to questions regarding the effect of the bill on the ability of local governments to craft their own regulations to combat illicit massage parlors. Ms. Cain responded to further questions regarding laws currently available to law enforcement to combat human trafficking.



08:48 PM --
Ms. Meghan Dollar and Mr. Eric Bergman, representing the Colorado Municipal League and Colorado Counties, Incorporated, testified on the bill from a neutral perspective. Mr. Bergman discussed some potential amendments to the bill that would bolster local regulatory authority, and the stakeholder process involved in crafting the bill. Ms. Dollar provided input on the local regulatory authority issue.



08:51 PM --
Mr. Michael Driscoll, representing himself, testified in opposition to the bill if it remains unamended. Mr. Driscoll discussed the merits of keeping certain forms of body manipulation exempt from the regulations concerning massage therapy, and keeping the exemptions in statute rather than moving them to the DORA rulemaking process.





















08:55 PM --
Ms. Vivian Gettliffe, representing herself, testified in opposition to the bill unless amended. Ms. Gettliffe spoke against the removal from statute of an exemption for structural integration from massage therapy regulation.



08:58 PM --
Mr. Brandon DeKock, representing himself, testified in support of amending HB 16-1320 to keep in state law the exemptions of certain practices from massage therapy regulation. Mr. DeKock read a letter from the Feldenkrais Guild of North America to this effect (Attachment D). Mr. DeKock discussed the Feldenkrais practice, and suggested some amendments to the bill. Mr. DeKock responded to questions regarding exempting certain practices from massage therapy in DORA rule rather than in state law.



16HouseJud0324AttachD.pdf16HouseJud0324AttachD.pdf



09:08 PM --
Mr. Al Wadleigh, representing himself, testified in opposition to the bill unless amended. Mr. Wadleigh provided input on the Feldenkrais practice.



09:13 PM --
Ms. Lauren Larson, representing DORA, testified in support of the bill. Ms. Larson discussed the impetus behind the bill, and efforts on the part of DORA to minimize licensing burdens. Ms. Larson addressed certain concerns raised by previous witnesses, and discussed certain cases that have involved unlawful sexual contact under the guise of legitimate body manipulation practices. Ms. Larson excerpted a letter from the Fourth Judicial District (Attachment E). Ms. Larson responded to questions regarding how she anticipates that DORA will craft rules that exempt certain practices from massage therapy regulation.



16HouseJud0324AttachE.pdf16HouseJud0324AttachE.pdf



09:25 PM



Ms. Larson responded to questions regarding the most comprehensive regulatory and legal scheme for addressing illegal sexual activity taking place under the guise of massage therapy, including regulation at the local level. Ms. Larson responded to further questions regarding the potential for DORA to explicitly grant regulatory authority to local governments in the area of massage therapy.





09:32 PM



Representative Foote requested that the bill be laid over for further work on amendments.





09:32 PM



The committee adjourned.


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