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

For this final Court Crawl of 2022, Coloradans recently received a preview of their new federal judges, plus the state Supreme Court closed out its arguments for the calendar year.

Judges on the horizon

?  There are two planned vacancies next year on Colorado’s seven-member federal trial court, and the White House has already selected one nominee: U.S. Magistrate Judge Gordon P. Gallagher. Gallagher is stationed in Grand Junction, where he works part-time as a judge but also is a defense attorney in state court. The Biden administration has nominated him to succeed William J. Martínez, an Obama administration appointee who will become a semi-retired senior judge in February.

?  Gallagher appeared before the U.S. Senate Committee on the Judiciary, where he spoke briefly about his work on the district court. U.S. Sen. Michael Bennet also gave a personal introduction of Gallagher:

The judge credits his devotion to public service to his grandfather, who served as an air navigator during the second World War. He was shot down over eastern Europe on his 49th mission. After the war, his grandfather came home to continue the fight for America’s highest ideals, working to integrate housing in his community. His example stuck with Gordon. 

?  Notable elements of diversity Gallagher would bring to the bench include his professional background (criminal defense attorney, magistrate judge) plus his geographical factor. Gallagher has several endorsements from the Western Slope community, as he would be the first presidentially-appointed judge since 1989 to call that part of the state home. One endorsement letter summed up a common sentiment among his supporters:

It is ironic that the area of the state west of the Continental Divide, which is so often what people think of when they envision Colorado, has been so underrepresented on the federal bench.

?  Gallagher will receive a Senate vote sometime next year.

?  The U.S. District Court also announced two new magistrate judges who will join the bench next year: Susan Prose of the U.S. attorney’s office and Kathryn Starnella of the Colorado Attorney General’s Office. Both women have defended the federal and state governments, respectively, in civil litigation, including against prisoners’ civil rights lawsuits.

?  Prose will succeed U.S. District Court Judge Nina Y. Wang, who is the first magistrate judge in Colorado to ever receive a lifetime appointment. Starnella will succeed Kristen L. Mix, who is retiring in August 2023.

?  With that announcement, Court Crawl would note that 2022 has effectively been the “year of the woman” for the state’s federal trial court. All of the additions to the court this year have been female: Wang, Prose, Starnella, U.S. Magistrate Judge Maritza Dominguez Braswell and U.S. District Court Judge Charlotte N. Sweeney.

Supreme Court activity

?  The oral arguments the Colorado Supreme Court heard in December featured a rare instance of the justices being asked to evaluate the work of their colleague. This time, it was Justice Carlos A. Samour Jr. who, as an Arapahoe County trial judge in 2012, upheld the dismissal of a Black juror over the objection of the defense. The case, which implicates the constitutional prohibition on race-based excusals of jurors, calls into question what information trial judges may consider at a later time when reviewing the legality of an excusal.

?  Although out-of-court statements are not typically admissible at trial, there is an exception to this hearsay evidence for child victims of sex crimes. But there isn’t just one age cutoff in state law that defines when hearsay is acceptable. There are multiple age cutoffs. The Supreme Court is now considering how to apply the various provisions on child hearsay.

?  The justices saw no problem with a Jefferson County judge’s decision to keep going with the hearing where she terminated a father’s parental rights, even as the man struggled to log in and attend the virtual proceedings.

?  It had been unclear how criminal defendants who are convicted may ask for the return of any property the police seized in connection with their investigation. Now, the Supreme Court clarified defendants should use their criminal case as the vehicle for the request, which can extend beyond sentencing.

?  Thornton Mayor Jan Kulmann does not have to vacate her office immediately, as the Supreme Court decided, by 5-2, her prior service as a ward council member did not bar her from the mayor’s office under the constitutional term limits voters imposed on local officials.

?  Tina Peters, the Mesa County clerk and recorder who is being prosecuted for an alleged security breach at her elections office, may not compel her trial judge to testify about a separate incident in which she is accused of recording courtroom proceedings and lying about it.

?  Finally, the justices have agreed to hear four cases:

Polis v. Rocky Mountain Gun Owners et al.: Did the House of Representatives violate the state constitution when it enacted a landmark gun safety law in 2019?

The State of Colorado et al. v. Hill: Does a man have standing to seek a ruling about who owns the riverbed of his favorite fishing spot, with implications for property rights statewide?

Killmer, Lane & Newman LLP et al. v. BKP, Inc. et al.: How does the shield normally afforded to lawyers who speak about their litigation apply in a class action case?

Gregory v. Safeco Insurance Company of America: Should claims made through homeowner insurance policies be allowed to proceed even if they are filed late, as long as the insurance company’s ability to defend against the claim isn’t compromised?

Heard on appeal

?  A federal trial judge ordered two lawyers to pay nearly $187,000 for pursuing a meritless lawsuit that alleged a liberal conspiracy to rig the 2020 presidential election. The U.S. Court of Appeals for the 10th Circuit has now upheld that sanction – with a panel of one Democratic-appointed and two Republican-appointed judges.

?  The U.S. Environmental Protection Agency asked a Colorado Springs landlord for documentation that he was disclosing to his tenants any lead-based paint hazards in his apartment building. The landlord refused. The 10th Circuit has now upheld the legality of the EPA’s subpoena.

?  The state’s Court of Appeals ordered a new analysis of whether a Colorado Department of Corrections employee should have been fired for killing one teenager and wounding another in an April 2020 shooting.

?  Jefferson County prosecutors didn’t present proof beyond a reasonable doubt that a man who allegedly made sexualized comments to a 10-year-old was also trying to get the child into his pickup truck in order to sexually assault her.

?  The U.S. Supreme Court has set a very high bar for when judges, or people acting in a judicial capacity, need to recuse themselves under the U.S. Constitution because of a campaign contribution from one of the parties to a case. A $10,000 contribution to a Larimer County commissioner, who subsequently decided a land use case involving the donors, didn’t reach the constitutional threshold for recusal, the Court of Appeals decided.

?  Just because someone is suing the government, a public entity can’t deny that person’s open records request for information they may use in the lawsuit.

?  Fifteen years after she got her degree, the Community College of Denver took the position that a nurse never actually graduated from the school, an allegation that ruined her career. Now the Court of Appeals has decided she may sue the school.

In federal news

?  Earlier this year, the 10th Circuit returned two cases involving alleged constitutional violations to the trial court for further proceedings. Now, a judge is evaluating whether qualified immunity applies to 1.) prison officials who reportedly prevented a Muslim inmate from exercising his religious beliefs, and 2.) Cherry Creek School District personnel who suspended, then expelled a student for a Snapchat post he says was a joke.

Vacancies and appointments

?  The governor has appointed Inga H. Causey to the Eagle County Court to succeed now-District Court Judge Rachel J. Olguin-Fresquez. Causey’s resume is lengthy, as she is a magistrate, deputy municipal judge in Minturn, associate municipal judge for De Beque, and municipal prosecutor for Avon and Vail (and those are just her current jobs).

?  Judge Laura A. Tighe of the First Judicial District Court (Jefferson and Gilpin counties) will retire on March 1. Applications are due by Jan. 6 for the seat.

?  Anthony Baca, Anthony Edwards and R. Reid Stewart are the finalists to succeed Judge Anne Kathryn Woods on the La Plata County Court.

Loose ends

?  Of the many cases Colorado Politics covered in 2022, some involved major issues that terminated in ways other than a judge’s order. Here are some updates on those:

Hall v. Weld County Sheriff’s Office: A Muslim detainee in the Weld County jail alleged it was a First Amendment violation to bar Muslim inmates from leading congregate Friday prayer. The case has now settled.

Franco v. City of Boulder: A jury awarded $3.41 million after deciding the city of Boulder had violated the constitutional rights of a now-deceased man by failing to adequately train its police officers. The city moved to appeal over the legal issues involved, but the parties reached a settlement this summer.

Brooks v. Colorado Department of Corrections et al.: The 10th Circuit reinstated the lawsuit of a disabled inmate who was offered only adult diapers for his medical condition, when an allegedly more reasonable accommodation existed. A jury agreed, awarding Jason Brooks $3.5 million this month.

Miscellaneous proceedings

?  Summit County District Court Judge Mark D. Thompson resigned after verbally abusing lawyers in his courtroom. Thompson recently finished an unpaid suspension following his criminal proceedings for brandishing a rifle at his stepson.

?  More than seven years after a man allegedly murdered multiple people at a Planned Parenthood site in Colorado Springs, his criminal case is still on hold.

See you in 2023

?  The Court Crawl will be taking a break for the holidays and will return in January. Until then, keep checking coloradopolitics.com for the latest news.