Judiciary issues take center stage

The Colorado Statesman

Judiciary issues could become the most difficult and contentious topics facing the legislature this year. Lawmakers will tackle the uncharted world of recreational marijuana regulation, a troubled child protection system and polarizing discussions on gun control.

But it is also the bigger judiciary picture that lawmakers will need to focus on. Colorado Supreme Court Chief Justice Michael Bender — in his last annual State of the Judiciary address to a joint session of the legislature on Jan. 11 — described the judiciary in Colorado to be “alive and well.” That’s not to say, however, that there isn’t still work to be done, Bender implored legislators.

“Sadly, citizens who do not have firsthand experience with our judicial system have a different perception than those who have actually moved through our courts,” declared Bender. “General public opinion polls reflect the attitude that only wealthy persons have access to fair justice, and this perception is most prevalent in communities of color.”

The legislature could address this issue of judicial equity by finding solutions for the growing number of pro se cases in the state, or individuals who come to court without an attorney, said Bender.

“That’s a very serious problem for us to solve and for us to deal with,” he told lawmakers.

Rep. Daniel Kagan, D-Cherry Hills Village, chairman of the House Judiciary Committee, agreed there needs to be advancements in judicial equity.

“Our primary responsibility is to make sure the great leveler that is the judicial system, where all people stand equally before the courts, is a crucial part of the fabric of freedom,” Kagan, a former lawyer, opined. “And it must be available to all on an equal footing.”

Sen. Kevin Lundberg of Berthoud, the ranking Republican member of the Senate Judiciary Committee, also believes more needs to be done to achieve judicial fairness.

“When the average person can’t afford to go to court, it’s not right,” asserted Lundberg. “It’s a scary thing when you’re not just afraid of going to jail, you’re afraid of having to pay your lawyer’s bill.”

Bender believes that in order for there to be judicial progress, legislators should consider a raise for the state’s estimated 3,500 judiciary employees.

“They haven’t had a raise in four years,” Bender pleaded with the joint chambers of the Capitol. “Recently we did a survey, and… we found that almost half of them were moonlighting… because they needed to supplement their income.”

Bender also highlighted the new Ralph L. Carr Judicial Center — located at 14th Avenue and Broadway — which officially opened with a ribbon-cutting ceremony on Monday. The center was named for former Gov. Carr, who served from 1939-1943 under the principles of equality and freedom for all.

“The Judicial Center stands tall, rock solid, at the seat and center of our state government, symbolizing protection of the weak and guardianship of the hopes and aspirations of all of us,” Bender fondly spoke of the new building, which he called “dear to my heart.”

Child protection

At least one segment of the state’s population could use more guardianship and protection, and that is foster children. A Denver Post investigation found that out of 175 children who died of abuse and neglect in the last six years, 72 of them had families or caregivers who were known to caseworkers before their deaths.

The issue spans further than just judiciary. It will also likely be addressed as a health care issue. But many see it as being under the purview of the judiciary.

Human services officials told lawmakers at a legislative luncheon on Tuesday that reforms for the state’s child protection system should include increased training for state employees who screen reports of abuse, as well as a statewide hotline to report allegations of abuse and neglect. Data is also an issue, said human services officials, pointing out that information collected needs to include workloads and turnover rates of caseworkers.
Kagan said he would like his committee to make child protection a priority this year.

“It’s very troubling,” he said. “Whenever a child dies it’s tragic. When a child dies from abuse and neglect and the case was already known to child protective services then it’s really doubly troubling and tragic.”

Lundberg will absolutely be faced with the issue of child protection this year, as he is also a member of the Senate Health and Human Services Committee. He said there is much agreement between Republicans and Democrats that reform is needed. But he said a division could come if Democrats try to extend government involvement.

“We don’t want to abuse kids through the system, and I can see some common ground,” Lundberg said. “The distinction between myself and my Democrat colleagues is how much government involvement and expense are we going to put in here?”

Child protection advocates are gearing up for the debate. Stephanie Villafuerte — the executive director of the Rocky Mountain Children’s Law Center who served as deputy chief of staff to former Gov. Bill Ritter and who was nominated in 2009 by President Barack Obama to be the U.S. attorney for Colorado — said child welfare reform is her organization’s top priority.

The issue is twofold for the Rocky Mountain Children’s Law Center: First the organization would like to address the child fatality review process, and second it would like to adhere to federal law and improve information sharing on child fatalities and near fatalities.

“For our part, there is not an alarm here. It’s just that the child welfare system… is 40 years young. It really is,” explained Villafuerte. “When you think of other disciplines, we are a relatively new discipline. And child welfare is just learning, and growing and developing every day, and quite frankly, I think this is part of its evolution.

“I don’t think this information is necessarily new,” she continued. “It’s just, how can we keep refining and getting better?”

Gun control

Where lawmakers will find less common ground is on the controversial issue of gun control. Democrats are calling for increased restrictions in the wake of the senseless Aurora movie theater massacre that claimed 12 lives and injured 58 others in July, as well as the Sandy Hook Elementary School shooting that left 20 children and six staff members dead last month. Republicans say they are prepared to pushback.

Few bills had been introduced as of Jan. 17. The bills that have been introduced have come from Republicans:

• Senate Bill 9, sponsored by Sens. Scott Renfroe, R-Greeley, and Ted Harvey, R-Highlands Ranch, would authorize school boards to develop a policy to allow an employee of a district to carry a concealed handgun on school grounds;

• House Bill 1085, sponsored by freshman Rep. Perry Buck, R-Windsor — the wife of Weld County District Attorney Ken Buck — would allow some felons to carry weapons in Colorado. The bill would still exclude felonies under the Victim’s Rights Act, burglary, arson and any felony involving the use of force, or the use of a deadly weapon; and

• Senate Bill 6, sponsored by Sen. Kent Lambert, R-Colorado Springs, would hold a private business liable for civil damages if the business prohibits the lawful carrying of firearms and does not have an armed security officer.

Democrats say they are still working on the details of their package of legislation, but it could include banning assault weapons, concealed-carry on campus and high-capacity ammunition clips.

Gov. John Hickenlooper, a Democrat, has also called for universal background checks and reforms to the state’s mental health system so that mental health data is transferred to the Colorado Bureau of Investigation in real-time for background checks.

Kagan acknowledged that the fight over gun control is going to be a contentious one, but he believes a balance can be struck.

“Feelings run very high on both sides, and we have to be respectful of those Second Amendment rights of Coloradans. You can’t just ride rough-shod over those,” suggested Kagan. “So, it’s an issue on which we’re getting a tremendous amount of mail on both sides… but the fact of the matter is we’re sent here to find the right balance between freedoms and dangers, and that’s what we’re determined to do.”

Lundberg, however, does not believe that the fight will result in compromise. He said he’s unwilling to back down if it means jeopardizing the Second Amendment.

“I’m going to try to balance the conversation by giving them the glaring reality of truth,” pronounced Lundberg.

“If they want to continue to disarm the citizens of Colorado when the constitution says the right to bear arms ‘shall’ not be questioned, I cannot in good conscience go halfway down their road,” he added. “I have to stand for common sense values and constitutional principles.”

Marijuana

Marijuana regulation will also come to a head at the legislature this year, as lawmakers seek to respect the will of voters in legalizing recreational cannabis.

The judiciary committees will get some support in the form of a task force convened by Hickenlooper that is currently examining what laws are necessary to safely regulate the trade.

“It’s tremendously helpful because it allows all the stakeholders to get around the table in an informal setting to hash out what might be supported from all quarters,” said Kagan, adding that no pun was intended with his use of the word “hash.”

Lundberg said the issue is likely to come at legislators from multiple directions. The legislature will need to address how cannabis is sold, distributed and grown; whether tourists can par-take; how banking of the industry will work; rules for farming industrial hemp; consumer and traffic safety; and label-ing, to name a few areas of discussion.

Some of the rules can just be transferred from existing medical marijuana regulation, but much of the issue is new. State officials are also confused as to how the federal government is going to react to laws legitimizing recreational marijuana.

“Do you dance around the fact that the federal government is still declaring it all illegal?” asked Lundberg.
He is also concerned that the task force is having a difficult time finding consensus among its 24 members who represent all factions of the debate.

“They’re not seeing any progress from their perspective,” said Lundberg. “I don’t know how it will translate for us. Is there a bill, or will there be many bills? I think it was the right thing to do to start moving through this. But it’s such a large group of people heading in so many directions that we’re liable to come up with even contradictory pieces of legislation.”

Judiciary reform

Meanwhile, the Colorado Criminal Justice Reform Coalition will be fighting for a complete overhaul of the state’s Controlled Substances Act.

The Colorado Commission on Criminal and Juvenile Justice, or the CCJJ, has recommended a new approach to controlled substance crimes. It includes a more comprehensive separation of drug offenses so that the state better differentiates between users and low-level distribution to define addiction versus serious trafficking.

“There’s some creative stuff around trying to get people into treatment, expanding treatment and moving into a new life,” said Christie Donner, executive director of the Criminal Justice Reform Coalition. “It’s been three years of work, and so we’re really excited about that.”

Juvenile justice could also be addressed this year if Rep. Paul Rosenthal, D-Denver, introduces a bill that would codify state law with a recent U.S. Supreme Court ruling that mandatory life without parole sentences for juveniles under 18 violate the Eighth Amendment, which bans cruel and u-nusual punishment. Colorado allows life without parole sentences for children.

Rosenthal said he is still working out details of the bill. State Public Defender Doug Wilson and the Pendulum Foundation, a juvenile justice advocacy organization, are encouraging the legislation.

“I don’t know how you can argue that we don’t have to make changes, because we are out of compliance with the United States Supreme Court…” said Mary Ellen Johnson, director of the Pendulum Foundation. “I can’t see why it would be controversial other than some people don’t want the sentences lowered, but that’s not in Colorado’s hands. The Supreme Court ruled that they must have an individualized sentence.”

Peter@coloradostatesman.com