Welcome to Court Crawl, Colorado Politics’ roundup of news from the third branch of government.

State lawmakers continued their hearings into Colorado’s system of judicial discipline, while there was news of personnel changes on the federal courts’ benches, including the retirement of a long-serving magistrate judge.

Judicial reform and investigation

•  The Denver Gazette reported last week on the hearings of a legislative committee that is exploring changes to the judicial discipline process. Former State Court Administrator Christopher Ryan, who was found in a recent investigation to have “gradually built an increasingly fragile edifice of deceits,” testified in favor of correcting the “extreme imbalance of power” between judges and court staff.

•  Lawmakers also heard pleas to change the secretive nature of judicial disciplinary proceedings, which only become visible in rare circumstances when the Colorado Supreme Court opts for public discipline. The committee received written testimony from a former judicial intern who claimed she was “expected to carry on with my life and keep my mouth shut” despite being the victim of harassment.

•  Exhibit A is former Adams County District Court Judge Thomas R. Ensor, who, in addition to having his questionable handling of cases repeatedly come to the attention of appellate courts, was admonished in 2008 for “serious misconduct including displaying naked skin, the physical touching/rubbing of his chest on a woman’s back, and inappropriate commentary.” Nevertheless, Ensor continued on for a decade as a judge. The Gazette reported Chief Justice Brian D. Boatright fired Ensor from his senior judge position last year after learning of the misconduct.

More churn on the federal courts

•  Colorado’s federal trial court was already seeking to fill the former position of U.S. District Court Judge Nina Y. Wang, who was a magistrate judge prior to her presidential appointment to a lifetime judgeship. But now, there is a second vacancy effective August 2023, as longtime U.S. Magistrate Judge Kristen L. Mix announced she will step down next year.

•  Mix is a graduate of the University of Colorado’s law school and specialized in labor and employment law prior to her 2007 appointment as a magistrate judge. She was one of the finalists Colorado’s senators recommended to the Obama administration for a 2016 district judge vacancy — a vacancy the Republican-controlled Senate ultimately held open for Donald Trump to fill.

•  Last year, Mix became the first Coloradan to lead the Federal Magistrate Judges Association. Among her other accomplishments, she founded the district court’s pro se clinic, created a diversity internship program and taught at CU’s law school.

•  Owen Davis, a labor and employment attorney at Husch Blackwell who once served as Mix’s clerk, told Colorado Politics that Mix’s professional experiences resonated with him and his career path:

In fact, her expertise (and stories) from practicing in the field is what led me to do the same, working in labor and employment now. … Off the bench, she was personable and compassionate to her law clerks, court staff, and others she worked with. She cared about our personal lives, provided meaningful encouragement, and never hesitated to take us out for group lunches at La Fiesta on Champa Street. I could not have asked for a better experience as a young attorney to clerk for Judge Mix and I owe my career to her.

•  Last week, the White House also nominated federal prosecutor Jabari Wamble to fill a Kansas-based vacancy on the U.S. Court of Appeals for the 10th Circuit, whose headquarters is in Denver. The vacancy has existed for a whopping 17 months, following the decision of Senior Judge Mary Beck Briscoe to step down from active service.

•  Wamble, who is the son-in-law of U.S. Rep. Emanuel Cleaver, D-Mo., would be the Biden administration’s second appointment to the 10th Circuit. Judge Veronica S. Rossman of Colorado took her seat on the court last year. Although Wamble would be the second Black judge on the 10th Circuit, the announcement drew criticism from the Mexican American Legal Defense and Educational Fund, which alluded to the absence of any active Latino judges on the 10th Circuit bench.

In other federal news

•  The Colorado Attorney General’s Office has filed its brief to the U.S. Supreme Court in the case of 303 Creative LLC v. Elenis, which could end up invalidating anti-discrimination protections in whole or in part for LGBTQ people in the marketplace. The AG appealed to the “history” and “tradition” of antidiscrimination laws, perhaps in a nod to the approach the conservative-majority court has taken on many issues this past term.

•  The 10th Circuit struck down a portion of Colorado’s Children’s Code that criminalizes the disclosure of non-identifying information in child welfare investigations. Because 48 other states have similar prohibitions, this could be the beginning of many other legal challenges on First Amendment grounds. 

•  Although federal prosecutors had a hand in failing to bring a defendant to trial within the required legal deadline, a federal judge admitted he was partially responsible for the delays too.

•  A former Denver Human Services employee may sue the city for alleged disability discrimination, even though courts have historically found local departments of human services enjoy governmental immunity, the 10th Circuit ruled. (Side note: The plaintiff who prevailed was represented previously in her case by now-U.S. District Court Judge Charlotte N. Sweeney. Earlier this month, the 10th Circuit also sided with another of Sweeney’s former clients on appeal.)

•  It is not possible for a parent, representing himself, to also represent his child in federal court to challenge the now-rescinded masking policy of Cherry Creek School District.

•  A physician working for the state’s Medicaid contractor alleged he was terminated because of his disability. There is no proof of that, a federal judge believed.

•  Although Grubhub and a Denver restaurant reached a nationwide settlement that will give restaurants more control over whether and how they are listed on the food delivery platform, a federal judge now says the parties need to keep talking to resolve a key issue.

•  A community college on the Western Slope properly terminated a professor after engaging in a yearlong process of trying to get him to improve his performance, a federal judge found.

Judicial retention

•  We’re coming up on an even-year election, meaning voters will decide whether to retain judges in their judicial districts and on the Court of Appeals. The 23 citizen-led judicial performance commissions around the state seemingly made it easy, finding all judges up for retention meet performance standards. However, judges in multiple jurisdictions had some members of their commissions dissent from that determination. Further, there were judges who were eligible for retention this cycle who retired or resigned, meaning we’ll never know if there were red flags with their performance.

•  At the same time, The Denver Gazette reported on a key shortcoming of the retention process: Performance commissions rarely know if judges have a history of misconduct complaints when making their recommendations to voters.

Vacancies and appointments

•  The governor has appointed Jenny L. Lopez Filkins with the Fort Collins City Attorney’s Office to the Larimer County Court, where she will succeed Judge Mary Joan Berenato.

•  Public defender Tarryn L. Johnson will be the next district judge in the 15th Judicial District (Baca, Cheyenne, Kiowa and Prowers counties), succeeding Judge Stanley A. Brinkley.

•  There are three finalists to succeed retiring Chief Judge James F. Hartmann as a district judge in Weld County: Magistrates Anita Crowther and Audrey Galloway and lawyer Eang Man.

•  Katharine A. Johnson and Angela M. Roff are the two candidates vying for an appointment to the Garfield County Court seat being vacated by Judge Paul Metzger.

Miscellaneous decisions

•  An Arapahoe County judge wrongly determined a man had knowingly and intelligently relinquished his right to legal counsel when he proceeded to trial representing himself, the state Court of Appeals decided.

•  The three police officers and two paramedics charged in the 2019 death of Elijah McClain will have their arraignments in Adams County in November.

•  The Court of Appeals found a Mesa County judge gave an improper jury instruction on self-defense that warranted reversal of the defendant’s murder conviction.

•  A sleeping juror in Fremont County didn’t amount to a violation of the defendant’s rights, the Court of Appeals decided.