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COVER STORY | Hot Topics in the 2021 session

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With the 2021 session finally underway, what will lawmakers be looking at, especially given the limitations on the budget imposed by the pandemic and ensuing recession?

The Colorado Politics statehouse team took a look at five issues that are likely to dominate the discussions for however long the session lasts.

CRIMINAL JUSTICE

First-degree felony murder

The charge allows a defendant to be charged with that crime if a victim is killed in the commission of certain felonies. Those include arson, robbery, burglary, kidnapping, sexual assault and escape. The sentence: life in prison without parole.

Sen. Pete Lee, D-Colorado Springs, hopes to change that. Among the criminal justice bills he’s sponsoring in the 2021 session is one to change the sentencing around felony murder, a repeat of a 2020 bill that was dismissed due to the pandemic. Under his proposal, instead of felony murder, the charge would be second-degree murder with a sentence of eight to 24 years, although he also proposes a sentence enhancement under certain circumstances.

Pete Lee

Pete Lee

He said as many as 500 people are incarcerated under the felony murder law, even though they did not actually commit the murder. “It’s the right thing to do,” Lee told Colorado Politics. “I want a system that is fair and just.”

If you’ve lived in Colorado for more than 20 years, you’ll remember the case.

On Nov. 12, 1997, 21-year-old Lisl Auman asked a friend, 25-year-old white supremacist Matthaeus Jaehnig, to drive her to the Jefferson County condo of a former boyfriend  to retrieve her belongings.

Prosecutors said it was a ruse to steal from the boyfriend. A police chase ensued. Jaehnig, who had a long criminal history, was at the wheel. The chase ended in an East Denver apartment complex. 

Auman was taken into custody almost immediately.

Police continued to pursue Jaehnig, who ambushed and murdered Denver Police Officer Bruce VanderJagt. After a hours-long standoff, Jaehnig committed suicide.

In 1998, Auman was tried for first-degree felony murder for VanderJagt's death, even though she was in police custody at the time he was killed. She was sentenced to life in prison without the possibility of parole. 

The story didn’t end there. In 2005, the Colorado Supreme Court threw out Auman’s sentence and ordered a new trial. In 2006, she was resentenced to 20 years in community corrections — eight years taken off for time already served — and paroled later that year, followed by nine years of probation.

Her re-sentencing was supported by VanderJagt’s widow, Anna, who said Auman apparently had taken responsibility for what happened.

But the law that sent Auman to a maximum-security prison for life is still on the books.

Matt Moseley is a communications strategist, former state Senate Democratic spokesman and author. He was the spokesman for the Auman family and campaign director for the high-profile effort to free Auman, which included actor Johnny Depp and gonzo journalist Hunter S. Thompson of Woody Creek. Moseley said the law allows people to be convicted of a crime in which they had no intent.

“The felony murder law is one of the most draconian laws in the world, and the United States is one of the few modern countries to use it,” Moseley explained. The law allows prosecutors a massive net to include anyone in the crime, he said. “They use it as a cudgel to induce confessions, and so it has sweeping implications for how justice is administered.”

Cash bail

Another criminal justice bill expected this session is on eliminating cash bail. That’s the bail a defendant is required to put up to be let out of jail after an arrest. However, criminal justice reform advocates, such as the Brennan Center, say that cash bail is discriminatory for both low-income and people of color. Defendants who can't afford bail often sit in jail for months awaiting trial. "Those who are held pretrial are four times more likely to be sentenced to prison than defendants released prior to trial," according to the Brennan Center, which also pointed out that pretrial bail also has devastating psychological impacts. 

Lee, who is expected to be the bill’s Senate sponsor, said his measure will also address the window of time for holding a bail hearing, perhaps as short as 24 hours. 

A similar bill in 2020 failed due to the different legislative priorities tied to the pandemic. 

Private prisons and prison populations

The future of private prisons could also be up for discussion. Last year, lawmakers approved a bill requiring a study of prison utilization; that study was released last month. The study, conducted by a firm hired by the Department of Local Affairs, said the system’s current operational capacity should be maintained at current levels, and that the two prisons in Bent and Crowley counties are significant economic drivers for those counties, as well as for neighboring Otero County. That isn’t going to sit well with those who advocate for closing the state’s last two private prisons. 

One bill that’s a sure thing: reducing jail populations, sponsored by Lee and based on efforts by county sheriffs to reduce jail populations during the pandemic. The bill intends a lighter hand on people committing low level offenses, Lee explained. For example, someone sleeping on a park bench after hours is usually arrested and charged with trespassing. That person does not need to be in jail unless they’re also committing some other more serious offense, Lee said.

Colin Larson

Colin Larson

Rep. Colin Larson, R-Littleton, says he will be “blocking and tackling” on criminal justice efforts. That includes keeping an eye out for revisiting Senate Bill 20-217, the law on police accountability. He’s concerned that Democratic lawmakers might try to bring back portions of the original language on qualified immunity. He’s also planning to fight back against legislation on keeping prison population numbers at COVID-release level, which he said put dangerous criminals on the street.

Civil justice

Rep. Matt Soper, R-Delta, attempted to abolish the statute of limitations for survivors of child sexual assault with HB20-1296, but that bill died in the state Senate. He is giving it new life this year. 

Matt Soper

Matt Soper

Jessie Danielson

Jessie Danielson

Soper and Sen. Jessie Danielson, D-Wheat Ridge, also plan to bring a bill to allow a new right of action for victims of sexual assault, without a statute of limitations. Under the bill, an individual could sue an institution that attempted to cover up sexual assaults, or in the case of the Catholic Church, transfer a priest from one parish to another.

“We don’t want to open up the gates to trial lawyers," Soper said.

Institutions could seek protection from lawsuits by changing policy or to create a fund, such as the one the Catholic Church set up with the Attorney General’s office. 

A third bill is a revival of HB20-1228, allows for preservation of evidence from a rape, even if charges had not been filed. 

EDUCATION

Testing

Among the controversial issues this session: CMAS. That’s the tests in mathematics, English language arts, science, and social studies assessments. The state didn’t administer the CMAS tests last year due to the pandemic. 

But there’s millions of dollars in federal money tied to those tests and the federal government must grant a waiver to the state to cancel the tests in 2021. 

Sen. Rachel Zenzinger, D-Arvada, who chairs the Senate Education Committee this year, and Rep. Emily Sirota, D-Denver, plan to sponsor a bill to seek that waiver.

Rachel Zenzinger

Rachel Zenzinger 

Emily Sirota

Emily Sirota

The proposed legislation in the result of a bill last session to create a working group tasked with coming up with recommendations for testing. The consensus of the group, according to Larson, is that test scores this year should not be used for high stakes accountability purposes or for evaluating individual teachers.

“It wouldn’t be productive because everyone assumes there will be learning loss,” said Larson, who fears that 90% of Colorado's 178 school districts would be put on turnaround status due to potentially low test scores. “It’s not reflective of reality,” he said.

But the recommendation on the waiver, while favored by school boards, school executives and the teachers union, was not a consensus decision of the working group. Larson thinks ordering the state Board of Education to seek the waiver would be “legally dubious” and could risk court challenges.

But aside from that, Larson said the testing, which is slated for April and May, would provide valuable information for policymakers in the 2022 session. Test scores would show where interventions are most needed, which he expects would be in schools serving students of color and low-income populations. 

The Zenzinger/Sirota bill is a “big pitched battle I’m preparing for,” Larson said.

Funding

After a 2020 session in which the state’s debt to K-12 education lost all the ground it had gained in the past decade, lawmakers will be on the lookout for ways to reduce that debt.

Over the last few years, lawmakers and two governors whittled the debt down to $572.4 million from a high of $1.13 billion. But then the pandemic hit, and K-12 education was one of the few places lawmakers could go to balance the budget.

The debt — the result of the 2008 Great Recession — is now at $1.17 billion, slightly higher than its highest point in 2012-13. As a result, schools are now receiving less state support per student on average ($8,078 in 2020-21) than they did when the budget stabilization factor was created in 2010 ($9,169).

Gov. Jared Polis’ proposed budget seeks to return the BS factor back to that 2019-20 level of $572.4 million. 

Barbara McLachlan

Barbara McLachlan

Another bill backed by a bipartisan coalition of lawmakers would reduce the strain on teachers, principals and other educators who are closing in on their five-year license renewals. Many have lost the continuing education opportunities needed for those renewals due to the pandemic, and the bill, to be sponsored by Larson and Rep. Barbara McLachlan, D-Durango, the chair of the House Education Committee, would permanently extend the renewal period to seven years. 

HEALTH CARE

The one to watch this session is the public option, aka the Colorado Option. Sen. Kerry Donovan, D-Vail and Rep. Dylan Roberts, D-Avon, are expected to be the sponsors on a second attempt at a public option bill. The sticking point in the 2020 legislation was price caps on hospital services, which drew strong opposition from the state’s hospital association as well as health care insurers.

The bill proposed last year sought to create a public-private partnership in which existing insurers issue the policy, while the state’s Division of Insurance would regulate the prices and require hospitals to accept the coverage. The public option would be made available to those on the individual market and could lower the cost of healthcare in rural Colorado by as much as 20%. However, the bill went back to the drawing board after the 2020 session and a new version is likely to surface this year. 

ELECTION ADMINISTRATION

Ranked-choice voting

Expect lawmakers to take up technical tweaks, not total transformation, of Colorado’s election administration system.

Rep. Chris Kennedy, a Lakewood Democrat who chairs the House State, Civic, Military and Veterans Affairs Committee, says he’s got two election-related bills in the works. The first is a measure that would seek to increase access to ranked-choice voting at the local level.

Chris Kennedy

Rep. Chris Kennedy, D-Lakewood

That system, also known as instant runoff, asks voters in elections with three or more candidates to rank their choices from most to least preferable. If a candidate fails to win at least 50% of the vote, the last-place candidate is eliminated and their votes reallocated to their voters’ second-choice candidate. 

Those instant runoffs continue until a candidate clears the 50% threshold, ensuring the winner has at least some level of support from a majority of voters. That, Kennedy said in an interview with Colorado Politics, was what interested him in the system for city races, where it’s not uncommon to see a plethora of candidates with the winner garnering only a plurality of support.

“I just never felt that that was fair,” he said. “I've always thought it was a better system to give people a way of prioritizing, because it addresses the spoiler issues and some of the other concerns that come up in those races.”

While cities are already allowed to use ranked-choice voting, only three — Basalt, Carbondale and Telluride — actually do. Kennedy said that’s because locals often rely on their county clerks to administer elections, and county clerks are required under state law to administer standard first-past-the-post elections.

“I'm just trying to clear those roadblocks and make it so that [locals] can meaningfully use the authority that they already have,” Kennedy said.

County commissioner redistricting

Kennedy is also planning to introduce a bill that would largely copy the framework from amendments Y and Z in 2018, which sought to draw fair district maps at the congressional and state legislative levels. Kennedy’s bill would add county commissioner maps into the mix, where commissioners are allowed to draw their own districts.

The proposal for the most part mirrors one that cleared committee but died last session without a floor vote after strong opposition from counties. They considered a provision calling for a seven-member independent commission, assisted by nonpartisan staff, to take charge of drawing district maps to be an expensive unfunded mandate. 

This year’s bill rolls back the independent map-drawing commissions from a requirement to a recommendation, but otherwise keeps much of the same framework in place. Eric Bergman, the policy director for Colorado Counties Inc., told Colorado Politics dropping the mandate for the commission helps but the bill still feels onerous, because there aren't widespread complaints about gerrymandering at the county level. Still, he said his organization would continue to work with Kennedy and provide feedback.

The bill as it currently stands would apply only to the state’s largest counties that have five commissioners: Arapahoe, El Paso and Weld. An additional seven — those with populations that exceed 70,000 — could eventually be included, including Boulder, Jefferson and Mesa, if those counties choose to go to five commissioners. They all have three now, but some are considering going to five. The only large counties that would be exempt are Broomfield and Denver, which are city/county governments led by city councils, not county commissions.

Kennedy said he hadn't started lobbying his colleagues on either of the bills yet but has drafts of both proposals ready to go. He was optimistic both could end up on the governor’s desk.

“I believe in myself, in my ability to do the work and persuade people that this is a good idea,” he said. 

Voter roll audit

House Republicans, meanwhile, will seek to go bigger.

Rep. Andres “Andy” Pico, R-Colorado Springs, said in an interview with Colorado Politics he’s planning to bring a bill that would require annual audits of the state’s voter registrations.

Andres Pico

Rep. Andres Pico, R-Colorado Springs

“As a step before we do anything else, let’s just audit and see how accurate the voter rolls are,” he said. “We want to do some cross-checking of databases, just making sure the people we’re sending ballots to are real people in those houses.”

Pico said the bill was intended to “put some meat behind” media reports he saw alleging Colorado had more registered voters than people eligible to vote. Pico said he didn’t remember the source of those reports, but it's likely a reference to a lawsuit brought last fall by conservative group Judicial Watch against Colorado Secretary of State Jena Griswold. That suit alleged the state's voter rolls were outdated and that counties had more registered voters than residents eligible to vote.

But former Republican Secretary of State Wayne Williams told Colorado Politics that suit is bogus. He said Judicial Watch came to their conclusion by taking 2018 population estimates and comparing them with 2020 voter rolls.  

“Douglas County accounts for more than 86% of the state’s total 13,924 discrepancies between 2018 eligible population and 2020 active voters, with two other growing counties – Broomfield and Elbert – representing most of the remainder,” he said. “Anyone who knows anything about Colorado demographics knows that Douglas County has been one of the fastest growing counties in America. So, adjusting for two years of growth easily explains the alleged discrepancy.”

Wayne Williams

Wayne Williams

Still, he said tweaks could be made to clean up the voter rolls. For one, he said the judicial system could share information with the Secretary of State's Office, such as sworn statements in response to jury summons indicating a person has moved. Williams also recommended deactivating the registration of voters who fail to vote during a five-year period. 

“Are there things that could be done to improve our system? Absolutely, those are two suggestions I made in the legislative testimony,” he said, referencing a contentious December Legislative Audit Committee hearing on election integrity called by Republicans. 

“But our system overall works very well.”

ENERGY/CLIMATE CHANGE

When it comes to protecting the environment, Sen. Faith Winter told Colorado Politics there are several areas she’s targeting to help cut down on greenhouse gas emissions and meet the goals laid out in House Bill 19-1261 -- including a 26 percent cut in carbon emissions by 2025.

Faith Winter

Sen. Faith Winter, D-Westminster

Transportation

The Westminster Democrat who chairs the Senate Transportation and Energy Committee said a transportation funding bill she is working on with House Transportation and Local Government Committee vice chair Matt Gray, D-Broomfield, would find ways to incentivize carbon reduction.

One such way that Gray highlighted would be through a road usage fee. That charge would apply to companies like Uber, Lyft, DoorDash and FedEx, that track the miles their drivers put on the roads. But Gray said the fee could be mitigated by encouraging practices such as carpooling, reducing both congestion and emissions.

“We want an Uber that's got three people in it to be cheaper than an Uber that's got one person,” he said.

Winter also said she expected to see rulemaking from the state Air Quality Control Commission this summer on transportation emissions.

Foremost, legislators will be challenged with finding hundreds of millions a year to fund the 10-year transportation improvement plan presented by the Polis administration last March.

Colorado Department of Transportation executive director Shoshana Lew has said the plan would take $500 million a year above traditional baseline budgeting for 10 years. The first four years of the plan were covered by Senate Bill 267 in 2017, which took a hospital provider fee out from under a constitutional spending cap, allowing the state to keep a $2 billion windfall for transportation.

Federal stimulus money could be part of the equation, but Colorado transportation advocacy groups are aligning for a hard push this session for a tangible solution for sustained funding. When John Hickenlooper was governor, his highway department estimated the backlog to keep up with the state's growth for a decade would cost $9 billion.

Greenhouse gas road map

Polis last month rolled out a road map for reducing Colorado's greenhouse gas pollution by 90% before 2050, and Winter said she’s planning legislation to make that a reality.

One area she specifically highlighted was electric power generation, where Polis’ roadmap is urging the Public Utilities Commission to make an 80% reduction in emissions by 2030 the bare minimum. 

“We’re going to be codifying the goals for the electric sector in that bill,” Winter said. She also said the bill will also incorporate elements to ensure transparency in rulemaking at the AQCC.

Winter said she’ll also be running an environmental justice bill that better defines and puts rules around disproportionately affected communities. 

In terms of priorities, she said she is focusing on the transportation bill before the road map implementation bill and expects the environmental justice proposal to come within the first two weeks of session.

She is also anticipating bills from her colleagues in a host of other areas, including: 

  • Promoting energy efficiency as it relates to building emissions.

  • Improving transmission infrastructure to help achieve renewable energy goals.

  • Providing resources to the Public Utilities Commission to help modernize the agency. 

Oil and gas

The state is still under a handshake deal with oil and gas and the environmental lobbies to allow Senate Bill 19-181 to be fully implemented before anyone tries to make any other changes. That landmark oil and gas legislation granted locals more regulatory authority and changed the mission of the Colorado Oil and Gas Conservation Commission from fostering development to regulating the industry.

From lawmakers’ perspective, Winter said the focus will be on rulemaking through the COGCC rather than legislation to address emissions. 

Oil and gas industry insiders say they are focusing elsewhere as well, chiefly on taxes.  

Some in the oil and gas industry told Colorado Politics they could see a severance tax hike coming to help offset the blow COVID-19 delivered to state revenues and backfill the coffers. While the industry recognizes it’s not in a position to dictate terms, it hopes for a robust discussion with those involved before upping the levy.

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