Five members of Colorado’s federal trial court have experienced far higher delays in deciding motions than their colleagues, according to recent data released by the federal judiciary.

The Civil Justice Reform Act of 1990 requires public reporting of motions pending longer than six months in civil cases assigned to each district judge and magistrate judge. For the reporting period ending Sept. 30, 2023, the majority of Colorado’s U.S. District Court judges had timely decided all or nearly all of their motions in under six months.

But once again, Judge Daniel D. Domenico topped the list, with a backlog of 103 motions awaiting a decision. For multiple reporting periods, Domenico has remained an outlier as the only judge in Colorado to hit a triple-digit backlog – and one of the few federal judges nationally whose numbers are that high.

Chief Judge Philip A. Brimmer and Senior Judges Raymond P. Moore and William J. Martínez have also joined Domenico in persistently reporting high numbers of pending motions.

Judge S. Kato Crews, who the U.S. Senate confirmed earlier this month to be a life-tenured district judge, also registered an unusually high number of undecided motions as of Sept. 30 during his previous role as a magistrate judge. Crews was one of two magistrate judges to report any motions lingering beyond six months, and the only magistrate judge to report a double-digit backlog.

When enacting the Civil Justice Reform Act, then-U.S. Sen. Joe Biden, D-Del., incorporated a provision requiring the Administrative Office of the U.S. Courts to release a public list of each trial judge’s pending motions as of March 31 and Sept. 30 each year. Under the reporting protocols, a motion becomes “pending” 30 days after its filing. Judges also have the opportunity to give a reason for the delay, such as “complexity of case,” “extensive discovery involved” or “voluminous” materials.

The motions on the six-month list range from dismissal and summary judgment requests, which can potentially end a case without a trial, to evidentiary and procedural matters.

Associate Dean Alan B. Morrison of The George Washington University Law School, who advocated for the reporting requirement more than three decades ago, said the purpose of the six-month list was to inform the public which judges were struggling to handle their dockets expeditiously.

Judges “tell me and tell others that they pay attention to their list. And judges say they don’t like it, but they agree it’s important and a good thing for the court system,” he said.

Varied reaction from the bench

Speaking about her first two years on the bench, Judge Regina M. Rodriguez told an audience of lawyers in November that she and her staff worked long hours and weekends initially to bring down the number of languishing motions she inherited upon her 2021 appointment.

“I can tell you I personally don’t like to keep things hanging out there for a long time because I was a practitioner for over 30 years,” she said. “I know the struggle that it is when the case kind of gets bogged down or you’re not getting orders on your motions. So, I personally try to keep things moving.”

Multiple members of the district court have advised attorneys that, if a motion has remained unaddressed for an abnormally long period, they should join their opposing counsel in bringing the delay politely to the judge’s attention.

“Anything to kick the tire and shake the tree or whatever analogy you want to use to say, ‘We’re here. We’d like some action,'” said Chief Magistrate Judge Michael E. Hegarty last summer.

Good luck, responded some lawyers who experienced icy receptions after doing just that.

“I have tried that tactic a few times and I don’t think I’ll ever do it again,” said one practitioner in Colorado’s federal court, speaking on condition of anonymity to avoid potentially negative impacts to their pending cases.

Another attorney, also speaking anonymously, had a similar experience of asking judges to address a delayed motion, only to be rebuffed. In one instance, Crews’ staff was “hostile” to the entreaty. In another case, Domenico’s staff curtly responded the judge was aware of the motion and would issue an order in due course.

More than a year later, Domenico still has not acted on the motion. In his six-month report, Domenico justified the delay by citing “voluminous briefs/transcripts” and the “complexity” of the case.

“If a federal judge – especially one as well-respected as Domenico, or any judge – says, ‘Here’s the reason I can’t get to your motion,’ I’m gonna believe you. Even if I don’t like it,” the lawyer said.

However, “I know my brief. It’s not voluminous. There’s no transcript. I’m looking at it. … There really isn’t much there to work through that’s out of the ordinary.”

Delays lasting years

Not all of Colorado’s backlogged judges reported delays of equal magnitude.

The outstanding motions for Brimmer, Martínez and Crews – appointees of George W. Bush, Barack Obama and Joe Biden, respectively – were generally overdue by a matter of months. Martínez and Crews, however, did not submit their reasons for delay at all.

Through the U.S. District Court’s clerk, the judges declined to comment to Colorado Politics.

Moore, an Obama appointee, also left several blanks when citing the reasons for delay. Nearly half of the motions on his six-month list were overdue by more than a year, with two motions overdue by more than 700 days.

Both motions were filed in early 2021 by the defendants in an incarcerated man’s constitutional rights lawsuit. They first appeared on Moore’s six-month list in September 2021 and on every report since. He has never given a reason for the lack of a decision.

The longest delay in deciding a motion belonged to Domenico, a Donald Trump appointee. A housekeeper filed suit against her employer in 2018 alleging a hostile work environment and retaliation. Shortly after the defendant filed a motion for summary judgment, the judge assigned to the case died. Domenico inherited the dispute.

Four years went by. The motion remained on Domenico’s six-month list, where he cited his “heavy criminal and civil caseload.” Finally, last month, Domenico issued his order, allowing some claims to proceed to trial. A week later, the parties filed a status report indicating they would consider the possibility of a settlement given the “changed circumstances” of Domenico’s order.

Attorneys who spoke to Colorado Politics acknowledged Colorado’s federal judges are busy and it is unlikely they are intentionally neglecting their cases. Domenico, in particular, has handled a series of high-profile constitutional challenges last year that required fast decisions, in contrast to other lawsuits.

Michael J. Laszlo, who represents a defendant in a civil lawsuit, has been waiting for Domenico’s ruling on his motion to dismiss for over three years. Laszlo acknowledged a delayed decision could benefit a particular plaintiff or defendant in a case, but the delay will more likely cause problems – leaving a lawsuit hanging over a defendant’s head, wearing down a plaintiff’s finances or motivation to keep going, or risking changes to the law that will impact the case’s trajectory.

He added that in other jurisdictions, judges more often hold oral arguments and rule quickly on motions. They may also issue briefer orders, without the level of detail typical in Colorado’s federal court. Mostly, Laszlo said, the concern with delay is having to restart a case after years of dormancy, and the effects that has on a client.

“In this case, if we get a ruling denying our motion right now, we now have to litigate over the next year to two years and then get a trial date in a year to two years. It’s not absurd to think we’ll get into a seven-year litigation,” he said. “That’s crazy. The better half of a decade.”