The three finalists for the impending vacancy on the Colorado Supreme Court are attorneys Andrea Wang and Timothy R. Macdonald, and retired Boulder County District Judge Maria E. Berkenkotter.

“All three are well respected,” said Christopher M. Jackson, an attorney at Holland & Hart, after the Judicial Department announced the candidates on Friday. Pursuant to Colorado’s system of judicial nominations, a 15-member commission solicited applications and interviewed candidates, narrowing the list to three.

Gov. Jared Polis will have 15 days to appoint one of the finalists. The incoming member will replace Chief Justice Nathan B. Coats, who took office in 2000. Coats will reach the mandatory retirement age of 72 in January. Justice Brian D. Boatright will succeed him in the chief’s role.

Maria E. Berkenkotter

Berkenkotter graduated with a law degree from the University of Denver in 1987. After clerking for a state Supreme Court justice, she joined the Colorado Attorney General’s Office in 1990, running the Antitrust, Consumer Protection and Tobacco Litigation Unit.

In 2018, Berkenkotter was also a finalist for the seat that ultimately went to Justice Carlos A. Samour, Jr. She served as a district judge in Boulder County from 2006 to 2017, and became chief judge in 2013.

Judicial performance commissions gave Berkenkotter unanimously favorable recommendations for retention in 2008 and 2014. 

“Comments from both attorneys and non-attorneys indicate that Judge Berkenkotter is perceived to be hard-working, organized, and fair,” the commission wrote in its 2014 narrative to voters, complimenting her on her demeanor. “The Commission feels that we are fortunate to have such a skilled, hard-working, and compassionate Chief Judge in the Twentieth Judicial District.”

Since January 2018, Berkenkotter has served as an arbiter with Judicial Arbiter Group in Denver, where she provides mediation services in civil, probate and domestic relations matters.

David Lane, an attorney at Killmer, Lane & Newman, LLP, recalled working with Berkenkotter in a mediation between his client, Overland High School teacher Jay Bennish, and the Cherry Creek School District, following allegations of racist behavior from Bennish.

“Part of the meditation experience is understanding how this stuff plays out in front of a jury,” he said. “We had extensive conversations about how these witnesses were going to be seen by juries and what pieces of evidence would or would not be admissible at trial. So clearly she understood very well the rules of evidence.” 

In her application to the nominating commission, Berkenkotter also wrote that she coaches judges on their performance, equalized dockets and judges’ workloads during her time as Boulder County’s chief judge, and presided over more than 110 civil and criminal jury trials.

One such high-profile case resulted in the conviction of Dynel Lane for the grisly crime of “fetal abduction,” after she cut the baby from her victim’s womb and claimed it to be her own. Berkenkotter said she offered jurors one-on-one counseling after the verdict and meetings with trauma therapists.

She included as her writing sample a 2016 order sealing the court file for a 16-year-old charged with murdering a 71-year-old victim, despite The Daily Camera‘s argument that the move was unconstitutional.

Timothy R. Macdonald

Macdonald graduated from the University of Michigan Law School in 1996, also receiving a master’s degree in public policy from the institution. He is a civil litigator at the international law firm of Arnold & Porter Kaye Scholer LLP, and is the managing partner of the Denver office.

In his application, Macdonald indicated he is a “generalist,” who has handled cases in administrative, natural resources and constitutional law, among other areas. Macdonald pointed in particular to his experience in tribal law, having spent 20 years representing the Hopi Tribe, including a set of disputes about access to religious sites that are now on Navajo land. He has served on the company’s ethics and policy committees, and was a clerk in the U.S. Court of Appeals for the Fifth Circuit.

“I also represented an individual in a petition under the Hague Convention on International Child Abduction in an action seeking the return of her children to her home country,” Macdonald wrote.

Among his past cases litigated, Macdonald cited a challenge to the state’s “negative factor,” designed in the wake of the 2008 recession to enable school funding decreases in light of the constitutional requirement mandating minimum funding levels. Macdonald currently represents Boulder in a challenge to the city’s ordinance banning large-capacity magazines and “assault weapons.”

“I co-founded the Legal Night at Mi Casa Resources Center for Women in 2006,” Macdonald wrote. “I have advised on issues ranging from housing, evictions, consumer fraud, health care debts, discrimination, immigration, personal bankruptcy, and many others.”

Connie Talmage, executive director of the Colorado Lawyers Committee and a friend of Macdonald’s, said he is “very, very wise. Not just smart, but very wise. Tim has a wisdom that causes people who are even more experienced than he is to listen to what he has to say.”

She pointed to his his significant pro bono experience, including his work this summer attempting to release medically at-risk detainees from the U.S. Immigration and Customs Enforcement facility in Aurora.

His writing sample was a legal brief arguing on behalf of the Sacramento Municipal Utility District that the federal government breached its contract to dispose of spent nuclear fuel. The lawsuit resulted in a federal court awarding more than $53 million to the district.

Andrea Wang

Wang received a law degree from the University of Colorado in 2001, and has practiced largely as a civil litigator ever since. She serves as an Assistant United States Attorney, where she handles cases involving companies who have attempted to defraud the government, disputes over federal lands and penalties against opioid providers.

Prior to her work in the government, Wang was a litigator at Davis Graham & Stubbs, LLP for 14 years. She chaired the diversity and inclusion committee, aimed at supporting and advancing attorneys who were women and people of color.

“I was a volunteer attorney for the Rocky Mountain Survivor Center, which provided services to torture survivors,” Wang wrote in her application. “I also served as a volunteer attorney representing teenage girls in ‘judicial bypass’ proceedings. These are court proceedings through which a judge determines whether a minor is sufficiently mature to make her own healthcare decisions, and whether advising her parents of her healthcare decision would be in the best interest of the minor.”

Wang spent one year as a clerk for former state Chief Justice Mary Mullarkey. Mullarkey remembered Wang’s work on the complex and long-running Taylor Ranch case, involving landowners’ claims to access a 77,000-acre tract in the San Luis Valley dating to Mexican ownership of the territory.

Mullarkey, who authored the opinion granting grazing, firewood and timber access, deemed Wang’s involvement on the case “superb. She’s just a very thoughtful person and her writing style is good. I found her really helpful when we would be discussing this case as we were working our way through it.”

Wang also served as president of the Asian Pacific American Bar Association between 2014 and 2015.

She was the attorney on a case settled late last year in which a Grand Junction weapons manufacturer paid $1 million following a whistle blower’s claim that the company fraudulently concealed defects in grenade launchers. Wang previously represented the United States government in a case involving an oil company that failed to pay royalties on a federal lease, resulting in a $300,000 settlement.

For her writing sample, she submitted a motion for summary judgment defending the Bureau of Alcohol, Tobacco, Firearms and Explosives’ decision to revoke the license of an Aurora gun dealer for sales that violated the law.

Video interviews of nominees took place on Nov. 5-6. The Judicial Department would not provide the total number of applicants or their names in response to an inquiry.

Speculating on the ideal traits for a state Supreme Court justice, Lane indicated that intellect and writing ability were priorities. Mullarkey noted that a justice will be working with six peers continuously, which is an unfamiliar dynamic to some applicants.

“One of the things that sometimes happens with district judges is they’re not used to working in a collegial manner,” she said, stressing she was not referring to Berkenkotter in particular and believed her to have an excellent reputation. “When you’re a trial court judge, you don’t have to consult with anybody else.”

The governor’s office is accepting comments on the three nominees at gov_judicialappointments@state.co.us.