Noting that trial judges across the state are routinely denying tenants the ability to have a jury hear their eviction cases, the Colorado Supreme Court ruled on Monday that certain types of disputes do qualify for a jury trial after all.

By 4-2, the Supreme Court’s majority acknowledged the concern that county courts, where evictions largely are heard, could become overwhelmed if even a fraction of tenants demand jury trials. But Justice Carlos A. Samour Jr. explained numerous other states honor the right to a jury trial and several factors work to limit the actual frequency of eviction trials.

“And of those cases that do proceed to trial, many are ineligible for a jury trial,” Samour wrote in the Oct. 21 opinion, given that a jury would only resolve factual disputes. For example, if the grounds for eviction are nonpayment of rent and the tenant did not, in fact, pay rent, a jury trial would be unwarranted.

Justice William W. Hood III disagreed that Colorado’s eviction statute unambiguously authorizes jury trials. He observed the law envisions the proceedings will occur rapidly, which is not how jury trials typically unfold.

“It seems implausible that the General Assembly would have expected a jury trial to occur within ten days. The everyday logistics of summoning jurors and finding space on the docket suggest as much,” Hood wrote for himself and Justice Maria E. Berkenkotter, both of whom are former trial judges. “Therefore, it makes no sense that the legislature, aware of the burdens and delays associated with scheduling jury trials, would authorize a potential avalanche of them to occur in a matter of days.”

Although Colorado Politics could not find data tracking the number of eviction trials annually, there have been 35,772 filings so far this year. Drew Hamrick, senior vice president of government affairs at the Apartment Association of Metro Denver, estimated 85% of evictions resolve without government intervention.

“The addition of a jury to that process will dramatically increase the cost of that litigation, which is good for the residents and bad for the property owner, and will add a fairly significant delay to the process,” he said. “I anticipate it will dramatically slow down and dramatically increase the price of an eviction action.”

While landlords are likely to have legal representation in eviction cases, tenants almost never do. The Colorado Poverty Law Project, which submitted a brief arguing it is beneficial to have a mix of socio-economic backgrounds deciding factual issues of a tenant’s eviction, praised the Supreme Court’s ruling.

“With this decision, renters will finally be entitled to an opportunity to have their side of a dispute heard before a jury of their peers,” said deputy executive director Jack Regenbogen.

Disputed facts

When Naomi Bermudez’s landlord moved to evict her this year from her apartment in Denver’s Clare Gardens, she asked for a jury trial. She intended to challenge the reasons her landlord cited in its eviction notice.

Initially, County Court Judge Isaam Shamsid-Deen said he would hear arguments at the scheduled bench trial about whether to allow for a jury trial, leading Bermudez’s attorney to protest that she needed to know in advance whether to prepare for a jury trial. In a two-sentence order, Shamsid-Deen responded simply, “In Colorado, there is no constitutional right to a jury trial in civil matters.”

He denied the request.

Bermudez appealed directly to the Supreme Court, saying there was no precedent in Colorado holding that tenants lack the right to a jury trial when contesting the facts of their eviction. In fact, case law and the text of the eviction statute suggested the jury trial right does exist.

“Despite this, Colorado’s county courts have consistently denied tenants a jury trial over recent years, just like the Denver County Court has done in Ms. Bermudez’s case — without analysis,” wrote attorney Spencer Bailey.

In response, the arguments from apartment operator Mercy Housing and Shamsid-Deen emphasized the difficulty of holding jury trials amid a flood of eviction cases.

In 2023, Mercy Housing’s law firm, Tschetter Sulzer, reportedly filed 36,656 evictions cases, of which 4,683 were set for trial.

“If even one in five of those trials required an empaneled jury, that would require multiple jury trials every day of the week, the brunt of which would be borne by a handful of Front Range counties,” wrote attorney Christopher R. Cunningham of Tschetter Sulzer, which boasts that it is “Colorado’s #1 Eviction Law Firm.“

Shamsid-Deen defended his ruling, writing in a statement that Denver County Court sees 27,000 civil cases per year, 90% of them being evictions. There are 30-45 eviction cases set for trial each week across the city’s courtrooms.

“From my perspective — as one of four judges assigned to the busiest Forcible Entry and Detainer (eviction) judicial district in Colorado — potentially granting FED defendants an automatic right to jury trial would overwhelm the courts,” he wrote.

Impacts overstated?

Bailey, the lawyer for Bermudez, countered that the fears of an unsustainable explosion in jury trials were overblown. First, not all eviction cases set for trial actually go to trial. Second, the vast majority of evictions involve settlement, a payment of rent or a move-out. Third, tenants must pay a fee to obtain a jury trial. Finally, not all eviction trials are eligible to be heard by a jury, in part because leases contain language waiving the right to a jury trial.

“Certainly, jury trials take more time than a bench trial, but mere inconvenience or difficulty in following the law has never been grounds to ignore the law or overturn long-standing precedent,” Bailey wrote.

The Supreme Court’s majority agreed with him, with Samour noting he was “unpersuaded that today’s decision will cause the sky to fall.” Samour added that if problems arise, “the legislature’s residence is across the street from ours,” and parties should take their concerns to lawmakers.

A spokesperson for the Denver County Court declined to comment.

Justice Brian D. Boatright did not participate in the case. As is the Supreme Court’s practice, he did not disclose the reason for his recusal.

The case is Mercy Housing Management Group Inc. v. Bermudez.