Welcome to Court Crawl, Colorado Politics’ roundup of news from the third branch of government. The Colorado Supreme Court handed down several key decisions last week and held oral arguments in a pair of consequential cases, while the federal courts continue to weigh in on challenges to government vaccination mandates.

Make My Day, judicial analogies get clarity from justices

?  The state Supreme Court considered the question of whether the basement of a multifamily building is a place where a resident can use lethal force in self-defense against an intruder. The answer is: yes.

?  Under the state’s “Make My Day” law, which Colorado Politics described in depth last year, occupants of “dwellings” get immunity from prosecution if they are acting in self-defense against an unlawful intruder. What wasn’t clear was whether the common areas of multifamily buildings count as a dwelling. The Supreme Court clarified that they weren’t answering “yes” to every nook and cranny of every structure – but in the case of Patrick Rau, who killed a man in his Colorado Springs building’s basement, that common area was part of his dwelling.

?  The justices also sent a message to the state’s trial court judges: be very careful about explaining the concept of “reasonable doubt” to a jury. The Supreme Court found one Adams County judge crossed the line when he went off script during jury selection and likened reasonable doubt to the crack in the foundation of a home. 

?  Colorado Politics similarly explored the use of reasonable doubt illustrations last year, and why defendants claim those can lower the burden of proof needed to convict them. For years, the Court of Appeals has told judges – particularly those in Adams County – to be careful, but a handful of trial judges has continued to ignore those warnings.

?  Finally, the Supreme Court issued a 6-1 decision that found defendants may claim that they committed harassment in the name of self-defense.

Justices ponder immunity (and not the COVID kind)

?  In oral arguments last week, the Supreme Court considered a logistical pickle: the General Assembly has said explicitly that pretrial detainees can sue jail operators for injuries due to negligence. But what if the jail operator had a policy of causing injuries? Can they not be held accountable because they knew what they were doing?

?  The case arose after El Paso County Sheriff Bill Elder detained a man upon the request of federal immigration authorities, even though the detainee had bonded out of jail. Because Elder wasn’t negligent – he was deliberate – he argued he can’t be held liable for the prolonged detention. The justices weren’t so sure.

?  That interpretation is “not only counterintuitive to me, but absurd.” -Justice Carlos A. Samour Jr.

?  On a related subject, the justices attempted to untangle a web of laws intended to hold insurance companies responsible for unreasonably delaying or denying payments. The question is whether the General Assembly also wanted individual claims handlers to share in that liability. Multiple industry groups cautioned the Supreme Court against allowing employees to be personally sued for their decisions on insurance payouts, a message some justices heard clearly.

?  “Who in their right mind would wanna take this job of being a claims adjuster if you’re staring down the barrel of this kind of liability on a regular basis?” -Justice William W. Hood III

?  Also of note: The oral arguments returned to an online-only format, likely owing to the spread of the omicron variant.

Vaccine cases

?  A federal judge tossed a lawsuit filed in Colorado seeking to stop the COVID-19 vaccination mandate for the military, especially for service members who allegedly have “natural immunity” from a prior infection.

?   The U.S. Supreme Court also blocked the Biden administration’s vaccine or testing mandate for larger employers, while allowing a directive for health care worker vaccinations to take effect.

Vacancies and appointments

?  The governor has appointed Magistrate William H. Moller to be a district court judge in the Fourth Judicial District of El Paso and Teller counties. He succeeds Timothy J. Schutz, who received an appointment to the Court of Appeals last year.

?  There is another pending vacancy in the Fourth Judicial District with the retirement of Judge G. David Miller. Applications are due by Feb. 11.

?  The Denver County Court is seeking to fill a magistrate vacancy, and applications are due by Feb. 1.

?  The U.S. Senate Committee on the Judiciary postponed a vote last week on the nomination of Charlotte N. Sweeney to be a federal judge in Colorado. A vote is now scheduled for this Thursday.

A look at Title IX

? This week, the Colorado Politics cover story looks at the Title IX lawsuits that have been filed in Colorado over the past 30 years, bringing claims under the 50-year-old civil rights law that bars sex-based discrimination in federally-funded educational activities. The lawsuits have covered inequitable spending on athletics, victims of sexual harassment claiming their schools were deliberately indifferent, and accused perpetrators being railroaded through investigations. Here is an excerpt:

Attorney General Phil Weiser, a professor and dean of the University of Colorado Law School prior to his election, said he received annual training on equity and equal treatment. Now, his office defends many state institutions being sued for Title IX violations. Weiser said that equity in athletics was a “first-generation issue” for Title IX, and that schools, policymakers and courts have moved on to other sources of tension.

He acknowledged the potential for injustice that exists for both complainants and respondents.

“Due process, as it’s commonly understood by lawyers, means you’re given notice and an opportunity to be heard. So, if you manage to have some investigation where the alleged perpetrator was never talked to, and never given the opportunity to tell their side of the story, and you had a decision that adversely affected that person, that’s a concern,” he said.

“The other side is probably the one I’ve heard more commonly happen,” he continued, speaking of victims. “They’re subject to a sustained amount of harassment or even assault, and the question for the university is: Are you maintaining a safe environment where you’re preventing these assaults from happening, you’re addressing harassment?”

Miscellaneous decisions

? The state’s Court of Appeals has established that indigent people facing government-initiated contempt proceedings have the right to an attorney.

? Campaign contributions to local elected officials may, under rare circumstances, require them to recuse themselves to prevent a possible constitutional violation.

? A Jefferson County judge should have halted a virtual parental rights hearing while the father struggled to log on, the Court of Appeals found.

? Because Denver’s sheriff was not the final policymaker over payroll, the deputies’ union could not hold the city liable for the sheriff’s response to a dispute over dues.