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

State lawmakers looked skeptically at the Judicial Department’s budget request for the next year, and two appellate judges aired their complaints about how their court has interpreted Colorado’s free speech-protection law lately.

At the Supreme Court

•  The state’s justices vacillated between narrowly deciding whether a pair of judges correctly excluded in-person observers from criminal trials during the early COVID-19 pandemic and writing a broader opinion that provides guidance for a new age of digital courtrooms.

•  In a lengthy appeal by one of Colorado’s former death row inmates, the Supreme Court seemed concerned that large swaths of the 2009 trial litigated issues that made the defendant look “thuggish,” but were not necessarily proof he committed the charged offenses.

•  The Supreme Court decided it was reasonable for Black Hills Energy to recover its costs of a winter storm gas purchase by imposing a forward-looking flat rate on all customers, rather than charging them for the electricity they actually used during the storm.

•  The justices will decide whether two grandparents are entitled to seek visitation of their grandchildren following their adoption by the other set of grandparents, and also how strictly to hold lawyers to the deadline for filing appeals.

Legislative update

•  Leaders of the judicial branch and other justice-related agencies — including the attorney general’s office, the public defender’s office and the judicial discipline commission — appeared before the legislature’s judiciary committees for their annual oversight hearings. Among the highlights, lawmakers learned the cost of establishing 29 new judgeships had decreased (slightly), that Attorney General Phil Weiser is preparing for the federal government to no longer partner with the state in consumer protection actions, and that the public defender’s office is not in a position to cut its budget.

•  The following day, however, one senator criticized the Judicial Department for only seeking increases to its budget, without offering ideas for cuts.

Anti-SLAPP

•  The state’s Court of Appeals had a busier-than-usual week in the area of “anti-SLAPP,” a reference to legislation the General Assembly enacted in 2019 to provide a mechanism to quickly dispose of litigation that implicates a person’s First Amendment rights — specifically, the rights to free speech and to petition the government.

•  An appellate panel delivered yet another procedural victory to Eric Coomer, a former executive of Dominion Voting Systems who was the subject of a yet-to-be-proven accusation of election rigging from 2020. This time, he was allegedly defamed by a conservative talk show host and the corporate owner of 710 KNUS radio.

•  There was also intra-court drama about the anti-SLAPP law itself. In short, the first appellate panel to provide guidance in 2022 laid down one standard for how judges should evaluate whether to dismiss defamation lawsuits. However, subsequent appellate panels gravitated to a differently worded standard. Two of the judges from the original case, Ted C. Tow III and Michael H. Berger, wrote separate concurrences last week arguing their original standard was more faithful to the law.

•  “Specifically, these two frameworks provide different answers to the fundamental threshold question: Does a court reviewing a special motion to dismiss under the anti-SLAPP statute have to accept as true the evidence proffered by the plaintiff?” wrote Tow. His original decision said no, while the subsequent decisions said yes.

•  First Amendment attorney Ashley I. Kissinger, who has litigated an anti-SLAPP case on appeal, said she did see one standard as being slightly more plaintiff-friendly than the other, and appreciated Tow and Berger for calling attention to the discrepancy.

•  The original standard “has the salutary effect of forcing the plaintiff to bring what it has to the table early, rather than having to suffer through a long, expensive discovery process,” she said. “But that is a good thing — the whole point is to force a plaintiff bringing speech-related claims to show that they have a meritorious case before dragging the speaker through an expensive litigation process.”

In federal news

•  Four Colorado Springs police officers will face a civil trial over whether they violated a man’s rights by chasing him into his home without a warrant and restraining him, leading to his death.

Vacancies and appointments

•  There is one new district court judgeship in the 18th Judicial District (Arapahoe County) in the wake of Douglas, Elbert and Lincoln counties being spun off into the 23rd Judicial District. The finalists for that judgeship are: Jefferson County Magistrates Bryce D. Allen and Nicholas J. Campbell and Arapahoe County Court Judge J. Jay Williford.

Miscellaneous proceedings

•  District Court Judge Justin B. Haenlein of the 13th Judicial District (Morgan, Logan, Sedgwick, Phillips, Washington, Yuma and Kit Carson counties) is on a temporary suspension pending a disciplinary investigation. The nature of the proceedings is unclear, but the Supreme Court suspended Haenlein three weeks after voters chose to retain him.

•  The Judicial Department paid more than $155,000 to three employees and their lawyers in connection with the misconduct of former trial judges D. Brett Woods and John E. Scipione.

•  Retired District Court Judge Patricia Herron is now back on the bench as a part-time senior judge, despite the Court of Appeals overturning numerous convictions and sentences in cases she handled because of her errors. In one instance, an appellate judge was troubled that Herron “recharacterized history” in one of her orders by misrepresenting her prior actions.

•  The Gazette explored the connection between a competency court program and the man accused of fatally stabbing multiple people in downtown Denver this month.