In the past year, some members of the U.S. Supreme Court have chosen to disclose their justifications for recusing themselves from specific appeals, for reasons including their prior employment or their connection to people involved with the case.

Similarly, the Colorado Supreme Court’s weekly case announcements note when any of the seven justices has recused from an appeal, whether granted or turned down. But so far, explanations for non-participation are absent.

“An attorney should be able to tell a client why a full panel of the court is not participating in making a decision on a case,” said appellate lawyer Elizabeth A. McClintock. “Additionally, transparency in the judicial system at all levels is just preferable and inspires trust by the public at large that judicial officers are taking their duty to monitor their conflicts seriously. By making those decisions public, the process is transparent.”

Colorado’s Code of Judicial Conduct resembles the recusal framework for federal judges, with personal bias, familiarity with the parties or prior participation in the case being grounds for disqualification.

Sometimes, justices’ reasons for recusal are obvious even without an explanation. For example, Justices Carlos A. Samour Jr. and Maria E. Berkenkotter, who are former trial judges, did not participate in appeals for cases they presided over earlier in their careers.

In another instance, Justice Melissa Hart did not participate in a case involving oil and gas leases in Boulder County. On the surface, Hart, a former law professor who was appointed to the court in 2017, did not seemingly have any close connection to the parties or attorneys in the appeal.

“In this era when members of the public are skeptical of government in general, extra steps toward sharing information are helpful,” said Rep. Mike Weissman, D-Aurora, the chair of the House Judiciary Committee. “Promoting understanding of how government decisions are made is part of earning public trust.”

“Judges should be required to provide the grounds for their recusal/withdrawal from a case,” added Anthony Viorst, an appellate attorney. 

A request for comment from the Supreme Court was not returned. The court also did not respond to a question about the exclusion of certain appeals from its weekly case announcement sheets — specifically, those appeals taken directly from the trial courts.

Although the majority of appeals are filed after the Court of Appeals has rendered a decision, “Rule 21” petitions enable the Supreme Court to hear an appeal right away. Rule 21 cases generally allege an urgent error that cannot be corrected through the standard appeals process or an issue of statewide concern for which no appellate guidance is available yet.

The Supreme Court receives approximately one Rule 21 petition per business day, and those that are granted are listed on the weekly announcement sheet. But unlike cases on appeal from the Court of Appeals, the Supreme Court does not announce Rule 21 cases it turns down or which justices would have voted to hear the case.

“It is very helpful to know why a Rule 21 is denied and who would have granted the petition,” said public defender Joyce Akhahenda, as “knowing that information would provide more guidance to attorneys on what issues should be raised on Rule 21s as opposed to those issues that shouldn’t.”

McClintock added that seeing the denied petitions, as well as the names of any justices who were open to hearing the case, can give lawyers a sense of “how close the votes were to granting so if someone leaves/retires, then one could re-raise the issue.”

In one example, the Supreme Court denied a petition in December to compel the district attorney’s office for Larimer County to prosecute a bus driver who ran over and killed a man. The court did not publicly announce the rejection, nor the fact that two justices would have agreed to hear the case.

“Generally, more transparency is better; it gives people like me who are curious about the court’s operations a little more data,” said appellate attorney Christopher M. Jackson.