May 18, 2013

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HB 13-1254: Expanding the Restorative Justice Coordinating Council and Creating Pilot Project for Restorative Justice in Four Judicial Districts

April 10, 2013 by Leave a Comment

On March 6, 2013, Rep. Pete Lee and Sen. Linda Newell introduced HB 13-1254 - Concerning Restorative Justice. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, restorative justice victim-offender conferences must be initiated by the victim. As introduced, the bill modifies the requirement of victim initiation in some instances to permit district attorney or offender initiation. There is a restorative justice coordinating council established in the state court administrator’s office; the bill adds:

  • A member of the parole board;
  • A representative from the department of corrections;
  • A representative from a statewide organization representing victims; and
  • A restorative justice practitioner.

The restorative justice coordinating council shall develop a uniform restorative justice satisfaction evaluation. The council shall collect information regarding all existing restorative justice programs and practices and report that data to the house and senate judiciary committees by January 31, 2014.

The bill creates a pilot project for restorative justice programs in four judicial districts. At each site, if a juvenile who is under 18 years of age and could be charged in the petition with a misdemeanor and has not been previously charged or who has not participated in the pilot project, the district attorney shall assess the juvenile’s suitability for restorative justice. The district attorney may also refer any juvenile who is charged with a class 3, 4, 5, or 6 felony and has not been previously charged or who has not participated in the pilot project. If the district attorney determines that the juvenile is a suitable candidate for the restorative justice program, the district attorney may offer the juvenile an opportunity to participate in the restorative justice program. If the juvenile agrees to participate, the district attorney shall not file charges pending completion of the program. If the juvenile fails to complete the program, the district attorney may file a petition against the juvenile. The pilot project sites must annually report to the division of criminal justice in the department of public safety certain information on the pilot projects. The division of criminal justice shall prepare an annual report based on the information received.

The bill creates a $10 surcharge on all crimes to support a restorative justice fund. The fund will be used to defray the costs of restorative justice programs and administrative costs of the restorative justice coordinating council.

On March 26, the Judiciary Committee amended the bill and sent it to the Finance Committee.

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e-Legislative Report, 4/8/13

April 9, 2013 by Leave a Comment

CBA Director of Legislative Relations Michael Valdez issued his weekly e-Legislative Report on April 8, 2013. In this issue, he discusses the actions of the CBA Legislative Policy Committee, some important bills at the Capitol, and 20 bills of interest (10 from each house).

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The Legislative Policy Committee voted to support the Juvenile Law Section’s proposed amendments to SB 13-227. Concerning methods to protect the victim of a sexual assault in cases where a child was conceived as a result of the sexual assault.

The LPC also voted to support a House Joint Resolution, HJR 13-1019, concerning creation of an interim committee to study legal defense in juvenile justice proceedings, as recommended by the Juvenile Law Section.

At the Capitol

  • The Long Bill
  • The Long Bill continues its run as the biggest show in town. The House took its turn at amending and improving the bill last week. The Long bill a/k/a the Budget Bill, SB. 13-230 began the heavy part of its run in the House on Wednesday and finished up on Friday, April 5. At times, the floor debate became testy on 2nd and 3rd Reading in the House.
  • The budget fun should conclude by the end of the week; in the meantime we will get back to business as usual … bills, bills, bills.

For the complete e-Legislative Report, including the 20 bills of interest, click here.

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SB 13-229: Amending Statutory Provisions Related to Criminal Proceedings

April 8, 2013 by Leave a Comment

On Thursday, March 21, 2013, Sen. Lucia Guzman introduced SB 13-229 – Concerning Changes to Statutory Provisions Related to Criminal Proceedings. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, the fiscal note for a bill that creates a new crime includes an analysis of that new crime. The bill adds a description of gender and minority data related to the new crime to the analysis.

The bill changes the definition of felony complaint to require the complaint to be signed by the prosecutor. The change corresponds to a change in the Colorado rules of criminal procedure.

For security fraud offenses, the bill states the statute of limitations begins to run on the discovery of the criminal act.

The bill requires that if requested by the prosecution or defense that the probation department provide the presentence report at least seven days prior to sentencing. If the probation department can’t meet that deadline, the court shall grant the probation department an additional seven days to provide the presentence report.

Under current law, a presentence report regarding a sex offender must include a sex offender evaluation. There are some exceptions to this requirement. The bill adds an additional exception for cases in which there is a court-accepted stipulation by the sex offender and prosecutor to jail time or the sex offender is already serving a sentence in the department of corrections.

The bill makes clarifying changes to when a person convicted of a sex offense as a juvenile can petition to discontinue sex offender registration.

The bill corrects an incorrect internal citation.

The bill adds to the definition of restitution to include health care costs covered by a government agency or insurer.

Under current law, a person may commit first degree burglary if he or she possesses a deadly weapon during the burglary. The bill amends the crime so that a person must use or threaten the use of a deadly weapon to commit first degree burglary.

Under current law, a juvenile committed to a staff secure placement who turns 18 in custody and who walks away can be charged with a class 3 felony. The bill creates a new offense for that situation that is a class 3 misdemeanor. The bill directs that a juvenile who is subject to a direct file or transfer must be held in a county jail once the juvenile turns 18.

The bill clarifies some provisions in the aggravated juvenile offender statute.

Under current law, the district attorney or a probation officer may apply for entry of conviction and imposition of sentence for a deferred prosecution within the term of the deferred prosecution and up to 30 days after the term. The bill clarifies that time period also applies to juvenile deferred adjudications.

The bill allows the district attorney to appoint part-time district attorneys who do not practice criminal defense in the jurisdiction to fulfill the duties of the district attorney without the approval of the county commissioners. The bill adds that the appointed attorneys may be attorneys employed by the Colorado district attorneys’ council. The bill eliminates the requirement that part-time district attorneys be paid by the county they serve.

The bill clarifies that in a record-sealing petition based on a dismissal that is not the result of a completion of deferred disposition or multi-case disposition, the court shall order the record sealed if the petition on its face is sufficient. The bill clarifies that in records-sealing cases, a person may petition for sealing one record every 12-month period.

The bill clarifies that in drug conviction records-sealing cases, a person may petition for sealing one record every 12-month period.

The bill specifies that the attorney general has concurrent jurisdiction with local district attorneys to prosecute persons for crimes related to air and water quality, hazardous waste and substances, and solid waste. The bill was introduced on March 21 and is assigned to the Judiciary Committee.

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Governor Hickenlooper Signs Several Bills Into Law

April 2, 2013 by Leave a Comment

Governor Hickenlooper signed the first bills of the 2013 legislative session on January 31, 2013. Since then, he has signed an additional 116 bills, for a total of 118 bills.

On March 22, 2013, Governor Hickenlooper signed 29 bills. Five of them are summarized here.

  • HB 13-1126 - Concerning Statutorily Established Time Intervals, by Rep. Jared Wright and Sen. Irene Aguilar. The bill continues amending statutes in order to comply with “rule of seven” date calculations.
  • HB 13-1166 - Concerning the Repeal of Certain Crimes that Include Marital Status as an Element of the Crime, by Rep. Elena Kagan and Sen. Pat Steadman. The bill repeals the crimes of adultery and promoting sexual immorality.
  • SB 13-012 - Concerning Reporting of Suspected Child Abuse and Neglect by Youth Sports Organizations, by Sen. Rollie Heath and Rep. Jonathan Singer. The bill mandates that coaches, directors, and athletic personnel for youth sports organizations report suspected child abuse and neglect.
  • SB 13-078 - Concerning Points of Diversion that are Not Located at the Physical Location Specified in the Decrees for Diverted Water Rights, by Sen. Angela Giron and Rep. Jerry Sonnenberg. The bill allows owners of water rights to correct established but erroneously recorded points of diversion without having to apply for a change in water right.
  • SB 13-118 - Concerning Clarification of the Exemptions from the Laws Regulating Mortgage Loan Originators, and, in Connection Therewith, Exempting Real Estate Licensees Representing Persons Providing Seller Financing for the Sale of a Limited Number of Residential Properties Annually as Allowed by Law, by Sen. Mary Hodge and Rep. Dan Pabon. The bill allows a private property owner to provide seller financing to up to five properties without needing to fulfill licensing and registration requirements of mortgage brokers.

Governor Hickenlooper signed 12 bills into law on March 29, 2013. Four of them are summarized here.

  • HB 13-1016 - Concerning the Distribution to Beneficiaries of Amounts on Payable-on-Death (POD) Financial Institution Accounts Pursuant to Written Designation in the Records of the Financial Institution, by Rep. Bob Gardner and Sen. Cheri Jahn. The bill  specifies that funds held in a payable-on-death account may be distributed in an unequal manner if such intent is clearly written in the records of the financial institution.
  • HB 13-1168 - Concerning an Expansion in the Ability of a Ditch to Operate as an Acequia Ditch, by Rep. Edward Vigil and Sen. Gail Schwartz. The bill allows acequia ditch corporations to operate on properties other than long lots.
  • SB 13-008 - Concerning Elimination of the Waiting Period for Children’s Eligibility Under the Children’s Basic Health Plan, by Sen. Linda Newell and Rep. Beth McCann. The bill removes the waiting period for CHP+ health insurance, in hopes that removing the waiting period will encourage people to leave group plans and join CHP+.
  • SB 13-177 - Concerning Changes to the Juvenile Corrections Programs Resulting in Cost Reductions and Reducing the Juvenile Detention Bed Cap, Reducing the Appropriation for Commitment Beds and Assessment Services, and Making an Appropriation for Transportation, by the Joint Budget Committee. The bill reduces the maximum number of beds available in the Division of Youth Corrections due to a decreased number of youth offenders.

Finally, Governor Hickenlooper signed one bill on April 1, 2013. It is summarized here.

  • SB 13-194 - Concerning a Repeal of a Telephone Assistance Program for Low-Income Individuals and Reducing an Appropriation, by Sen. Pat Steadman and Rep. Cheri Gerou. The bill repeals the Low-Income Telephone Assistance Program.

For a complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.

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SB 13-216: Specifying Certain Young Adult Offenders Who May be Sentenced to the Youthful Offender System

March 28, 2013 by Leave a Comment

On Friday, March 15, 2013, Sen. Angela Giron introduced SB 13-216 – Concerning Youthful Offenders Within the State Department of Corrections. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill recreates and reenacts, with amendments, certain provisions relating to the sentencing of young adult offenders to the youthful offender system in the state department of corrections (department), which provisions were repealed on Oct. 1, 2012. The provisions allow certain young adult offenders to be sentenced to the youthful offender system. A “young adult offender” means a person who is at least 18 years of age but under 20 years of age at the time the crime is committed and under 21 years of age at the time of sentencing.

A young adult offender may be sentenced to the youthful offender system if he or she:

  • Is convicted of a felony enumerated as a crime of violence;
  • Is convicted of a felony involving a firearm;
  • Used, or possessed and threatened the use of, a deadly weapon during the commission of a felony against a person;
  • Is convicted of vehicular homicide, vehicular assault, or felonious arson;
  • Is convicted of a class 3 felony other than sexual assault, and has, within the two previous years, been adjudicated a juvenile delinquent for a delinquent act that would constitute a felony if committed by an adult; or
  • Is convicted of a felony offense and is determined to have been an habitual juvenile offender.

    • A young adult offender shall be ineligible for sentencing to the youthful offender system if he or she is convicted of any of the following:

  • A class 1 or class 2 felony;
  • A sexual offense, including incest or aggravated incest; or
  • Any offense, if the young adult offender has received a sentence to the youthful offender system for any prior conviction.

    • A young adult offender who is charged with first degree murder and pleads guilty to a class 2 felony as a result of a plea agreement is eligible for sentencing to the youthful offender system if the young adult offender would be eligible for sentencing to the youthful offender system for a conviction of the felony underlying the charge of first degree murder.

    On or before Aug. 1, 2013, the department shall implement policies pursuant to the federal “Prison Rape Elimination Act of 2003,” 42 U.S.C. 15601 et seq., to ensure compliance with certain provisions relating to youthful offenders.

    On or before Oct. 1, 2013, and on or before each Oct. 1 thereafter, the department shall report to the judiciary committees of the House of Representatives and Senate concerning the implementation of the new policies within the youthful offender system. The bill is assigned to the Judiciary Committee.

    Filed Under: Legislation Tagged With: , , ,

    Chief Justice Directive 04-06 Amended by Colorado Supreme Court

    March 27, 2013 by Leave a Comment

    In March 2013, the Colorado Supreme Court updated Chief Justice Directive (CJD) 04-06, concerning appointments by the Office of the Child’s Representative. The changes are in response to the Colorado Supreme Court opinion in L.A.N. et al. v. L.M.B.

    The decision in L.A.N. held that the GAL holds the child’s psychotherapist-patient privilege when the child is too young to hold the privilege, the child’s interests are adverse to his or her parents’ interests, and the privilege is not abrogated by C.R.S. § 19-3-311.

    The updates to the CJD are intended in part to provide counsel to children in dependency and neglect cases who have been determined of sufficient age and competent to hold their own patient-therapist privilege so that the counsel may advise the children of their privilege. The updates also clarify that appointments as counsel for children in D&N proceedings may be made from the Office of the Child’s Representative’s D&N appointment list. The CJD also clarifies payment procedures for these appointed attorneys.

    Click here to view a PDF of updated CJD 04-06. For all of the Chief Justice Directives, click here.

    Filed Under: Updates Tagged With: , , , , ,

    SB 13-198: Allowing Closure of Court to Public when Sexually Exploitative Materials or Forensic Interviews Related to a Child are Being Presented

    March 22, 2013 by Leave a Comment

    On Wednesday, February 27, 2013, Sen. Cheri Jahn introduced SB 13-198 – Concerning Closing a Court to the Public When Sexually Exploitative Material Related to a Specific Child is Being Presented as Evidence. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    The bill provides a court with the option to close the court to the public, when it is in the best interest of a child, when images of sexually exploitative materials or forensic interviews directly related to that child are being presented as evidence in court and the child or forensic interviewer is on the witness stand. On March 13, the Judiciary Committee amended the bill and sent it to the 2nd Reading Consent calendar for consideration by the full Senate.

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    HB 13-1117: Amending Administration of Early Childhood Development Programs

    March 6, 2013 by Leave a Comment

    On January 18, 2013, Rep. Millie Hamner and Sen. Mary Hodge introduced HB 13-1117 - Concerning Alignment of Child Development Programs. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    The bill states the general assembly’s recognition that it is in the state’s best interest for a specific office within the department of human services (department) to administer early childhood programs.

    The bill specifies that the department has the responsibility to administer early childhood programs and to assist the state board of human services in awarding grants. Participation in any early childhood program is voluntary and is not intended to interfere with parental rights.

    The bill moves the early childhood leadership council (ECLC) from the Governor’s office to the department. The overall membership is reduced from 35 to 20 members, by removing representatives of the office of information technology, the office of economic development, the state workforce development council, and the legislature. The reconstituted ECLC will now include representatives from the local public health community. The ECLC’s duties are changed to include more advising and monitoring of efforts around early childhood programs. The ECLC was scheduled to repeal July 1, 2013, but this date is extended to Sept. 1, 2018.

    The bill relocates several boards and programs from the department of public health and environment to the department of human services without substantive change:

    • The nurse home visitation program;
    • The Tony Grampsas youth services program, the Colorado youth mentoring services program, the Colorado student dropout prevention and intervention program, and the Colorado student before-and-after-school project;
    • The Colorado Children’s Trust Fund and its board; and
    • The family resource center program.

    The remaining sections of the bill make conforming amendments. On Feb. 22, the House gave final approval and passed the bill on 3rd Reading; the bill is assigned to the Health & Human Services Committee.

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    Colorado Supreme Court: Foster Parents Who Have Properly Intervened in Dependency & Neglect Action Under C.R.S. § 19-3-507(5)(a) Allowed to Fully Participate

    February 26, 2013 by Leave a Comment

    The Colorado Supreme Court issued its opinion in A.M. v. A.C. on Monday, February 25, 2013.

    Dependency and Neglect—Termination of Parental Rights—Rights of Intervenors—Due Process Rights of Parents—Foster Parents.

    The Supreme Court considered whether foster parents who intervene in a dependency and neglect action pursuant to CRS § 19-3-507(5)(a) possess only a limited right to participate in a hearing on a motion to terminate parental rights. The Court construed § 19-3-507(5)(a) and concluded that foster parents who have properly intervened are afforded the same degree of participation as all other parties at a termination hearing. In addition, the Court concluded that parents’ due process rights were not impacted by the full participation of foster parents in the termination hearing. Therefore, the Court held that foster parents who meet the required statutory criteria to intervene may participate fully in the termination hearing without limitation.

    Summary and full case available here.

    Filed Under: Case Law Tagged With: , , ,

    HB 13-1082: Setting Parameters for Expungement of Juvenile Delinquency Records

    February 22, 2013 by Leave a Comment

    On January 16, 2013, Rep. Jeanne Labuda introduced HB 13-1082 - Concerning Juvenile Delinquency Records. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    A court that adjudicates a person a juvenile delinquent shall consider initiating expungement proceedings for the person’s records not more than 30 days after the person’s sentence is discharged.

    A court that adjudicates a person an aggravated juvenile offender or a violent juvenile offender, or that adjudicates a person a juvenile delinquent for a felony offense of unlawful sexual behavior, shall consider initiating expungement proceedings for the person’s records not more than 5 years after the person’s sentence is discharged.

    The bill permits a court to order a petitioner’s records expunged in cases where the petitioner has been convicted of a misdemeanor since the termination of the court’s jurisdiction or the petitioner’s unconditional release from parole supervision.

    Under current law, the public has access to arrest and criminal records information, including a physical description, that concerns a juvenile who is adjudicated a juvenile delinquent or is subject to a revocation of probation for:

    • Committing the crime of possession of a handgun by a juvenile;
    • Committing an act that would constitute a class 1, 2, 3, or 4 felony; or
    • Committing an act that would constitute any crime that involves the use or possession of a weapon if such act were committed by an adult.

    The bill limits the public’s access to include only arrest and criminal records information, including a physical description, that concerns a juvenile who is adjudicated a juvenile delinquent or is subject to a revocation of probation for:

    • Committing the crime of possession of a handgun by a juvenile; or
    • Committing an act that would constitute a class 1 felony.

    The bill is assigned to the Judiciary Committee.

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    Colorado Supreme Court: Juvenile Justice System is Separate Statutory Framework from Adult Criminal Justice System and Provisions Are Not Interchangeable

    February 12, 2013 by Leave a Comment

    The Colorado Supreme Court issued its opinion in In re People in the Interest of W.P. on Monday, February 11, 2013.

    Competency to Proceed in the Juvenile Justice System—Availability of Second Competency Evaluation as of Right—Indigent Alleged Juvenile Offender—Rule Discharged.

    In this original proceeding, the Supreme Court considered whether an indigent alleged juvenile offender was entitled as of right to a second competency evaluation at state expense. Two days after W.P.’s arrest on allegations of sexual assault on a child, and one day after the juvenile division of the Adams County District Court appointed a public defender to represent him, the court ordered W.P. to undergo a competency evaluation at state expense. After receiving the evaluation report, the court made a preliminary finding that W.P. was competent to proceed in the case. Citing ongoing concerns about her client’s mental health, the public defender objected, requesting a competency hearing pursuant to CRS § 19-2-1302(2) of the Colorado Children’s Code and filing a motion for a second competency evaluation at state expense pursuant to CRS §§ 16-8.5-106 and -107 of the Colorado Code of Criminal Procedure. At the motion hearing, the public defender stated that “[b]ecause the juvenile code is silent, they are referring to the adult code,” which entitles a criminal defendant to a second competency evaluation at state expense. Concluding that the Children’s Code was “specifically silent on that issue,” the district court determined that the adult competency provisions did not apply to this case.

    The Court held that the district court did not abuse its discretion when it denied the public defender’s request for a second competency evaluation pursuant to CRS §§ 16-8.5-106 and -107, because these adult competency provisions do not apply in juvenile justice proceedings either explicitly or by implication. The Court concluded the General Assembly created two distinct competency frameworks: (1) promoting the criminal justice system’s goal of just punishment; and (2) advancing the juvenile justice system’s goal of appropriately sanctioning juvenile offenders, taking into consideration their own and society’s best interests. The juvenile competency provisions require a court to order an evaluation at any stage of the proceedings if it develops doubts about the alleged juvenile offender’s competency that are not satisfied by available information. The Court discharged the rule and returned the case to the district court for further proceedings.

    Summary and full case available here.

    Filed Under: Case Law Tagged With: , , , , , ,

    SB 13-047: Improving Protections Against Identity Theft for Youth in Foster Care

    February 8, 2013 by Leave a Comment

    On Wednesday, January 16, 2013, Sen. Linda Newell introduced SB 13-047 – Concerning Protections for Youth in Foster Care Against Identity Theft. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    The bill amends the statute for protection of youth in foster care against identity theft by:

    • Removing the exclusion of youth who are in the custody of the division of youth corrections or a state mental hospital;
    • Expanding the ages of the youth covered to any youth who is 16 years of age or older and in foster care; and
    • Requiring the department of human services to obtain annual credit reports rather than a single report.

    The bill is assigned to the Judiciary Committee.

    Since this summary, the Colorado General Assembly’s website indicates that the bill is assigned to the Health & Human Services Committee.

    Filed Under: Legislation Tagged With: , ,
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