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

The Colorado Supreme Court traveled to a high school in Colorado Springs to hear oral arguments in two real cases last week, plus the federal appeals court based in Denver took an unusual – and closely-divided – all-judges vote not to review an employment discrimination controversy.

Courts in the Community

?  Since 1986, the Colorado Judicial Department’s “Courts in the Community” program has taken the Supreme Court and the Court of Appeals outside of their Denver courthouses to hear cases around the state. Although the Supreme Court had to cancel its spring trip to Grand Junction (due to the chief justice’s COVID-19 illness), the court’s appearance at Pine Creek High School in Colorado Springs last week had a strong effect on students and teachers.

?  “This is kind of a once-in-a-lifetime experience for all of us,” said social studies instructor Joseph Rausch.

?  “Being able to see firsthand, I think, is gonna inspire a new generation of lawyers and judges. I know a lot of us today, even just sitting there watching, were really fired up,” added Cole Freyler, a senior.

?  The justices, who had lunch with small groups of students after the arguments, also fielded questions before the full auditorium about their professional backgrounds, the operations of the court and their motivations for becoming judges. Justice William W. Hood III further defended the work of the courts, in a seeming reference to recent criticism of the U.S. Supreme Court and the resulting pushback from its own members.

?  “There is a lot of cynicism these days about judges sometimes seeming like politicians in robes. Most judges around the country and all the judges on our court are making an effort to be intellectually honest about how the law is applied and not just picking out policy choices and pretending we’re king for a day. That’s not how we roll.” -Hood

?  About the arguments themselves: The first case involved a man in Denver who was tried and convicted, despite one juror falling asleep at least twice for at least five minutes each. The Court of Appeals didn’t even consider the merits of the defendant’s constitutional argument that his right to a jury of 12 was violated, but some justices appeared bothered by the trial judge’s lack of corrective action against the sleeping juror. The second case involved the illegal act of buying a gun with the intent to transfer it to an ineligible person. There is no definition of what “transfer” means under the law, and the justices’ interpretation of the word could end up reversing a defendant’s conviction.

Also at the high court

?  In other Supreme Court news, the justices decided, 6-1, a Gunnison County judge was wrong to bar the entire district attorney’s office from prosecuting a murder case, even though there were multiple violations of the office’s professional conduct policy.

?  The Sixth Amendment provides the right to effective assistance of counsel for all criminal defendants, and for wealthy defendants to hire the lawyer of their choosing. But even though it doesn’t allow indigent defendants to choose who is appointed to represent them, do poor defendants have the right to keep their assigned public defender for trial, even if a judge tries to force a substitution? The Court of Appeals has said yes, but the justices during oral arguments didn’t seem convinced the Sixth Amendment has anything to say about the right to continued representation.

?  The Court of Appeals last year granted individuals who have an ownership stake in oil and gas fields the right to protest their property tax valuation without having to go through the well operator. But a recent clarification to state law had the Supreme Court wondering if the legislature has effectively said the appeals court was wrong.

The ‘ministerial exception’

?  In a 94-page decision in June, a panel of judges at the U.S. Court of Appeals for the 10th Circuit issued a novel ruling implicating the “ministerial exception” to employment law. Created by the courts, the exception prohibits judicial interference with personnel decisions in faith houses that are fundamentally religious in nature – meaning lawsuits alleging employment discrimination are barred. The panel, by 2-1, found a trial judge’s decision not to apply the ministerial exception to an Arvada church was correct, and the church didn’t have the right to immediately appeal that decision before trial.

?  The church, Faith Bible Chapel International, asked the entire bench on the 10th Circuit to review the panel’s decision. By a 6-4 vote last week, the judges declined to do so. With one judge recused, all of the appointees of Democratic presidents, with the exception of Oklahoma’s Judge Robert E. Bacharach, voted against reopening the case. All of the Republican appointees, except New Mexico’s Judge Harris L Hartz, wanted to take up the appeal.

?  Outside organizations flooded the 10th Circuit with briefs in support of Faith Bible, asking the full court to uphold religious organizations’ “immunity” from lawsuits in faith-based employment decisions. The Court Crawl will be watching to see if this case makes its way before the Supreme Court, which may have a friendlier view of Faith Bible’s claims.

Vacancies and appointments

?  Applications are due by Nov. 30 to succeed the late Rio Blanco County Court Judge Joe Fennessy. He died of cancer earlier this month at age 71. Although Fennessy’s judicial performance commission had concerns about his ability to handle cases competently, voters retained him for another term in the general election. In addition to the part-time county court judgeship, there is also an opening for an “associate” county judgeship, following a recent change in state law. Both positions are part-time and require at least a high school degree or equivalent.

Miscellaneous proceedings

?  A former Arapahoe County judge, who resigned in 2021 after admitting to racial bias and other workplace misconduct, did not appear to be actually biased against a Hispanic father in a child welfare case, another judge found.

?  Based on a pro-gun ruling from the U.S. Supreme Court this year, a criminal defendant attempted to dismiss his indictment for illegal firearm possession. But a federal judge found that the Supreme Court’s ruling notwithstanding, the prohibition on felons possessing guns is constitutional.

?  A judge threw out an attempt by one of Donald Trump’s election lawyers to avoid a subpoena for her phone records by the congressional committee investigating the Jan. 6, 2021 attack on the U.S. Capitol.

?  With Democrats continuing their control of the U.S. Senate in the next Congress, nominations for upcoming judicial vacancies in Colorado will likely remain on track.

Going on holiday break

?  Due to the Thanksgiving holiday, the Court Crawl will take a hiatus next week and will return in December.