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

The state Supreme Court held arguments in several cases earlier this month, plus Colorado’s first federal district judge to sit outside of Denver spoke about his first few years in the job and the logistics associated with it.

Oral arguments heard

•  Colorado’s justices were wary of finding local governments can permit pretty much any entity anywhere to exceed the noise limits for events that state law has set for decades.

•  The Supreme Court considered whether Colorado’s restitution law requires defendants to pay back the money police used to buy drugs undercover — but subsequently lost track of.

•  The court seemed unsure that a city council has to release the recording of an improperly called closed-door session if it subsequently described to the public the direction given to lawyers in the closed session.

•  Some justices were concerned about the government’s “strict” view regarding when defendants can claim their criminal behavior was caused by a laced or spiked substance they consumed unknowingly.

•  The Supreme Court seemed open to declaring that local governments can’t impose harsher sentences than state law does for identical offenses.

•  The court debated whether a defendant convicted of securities fraud should have been able to testify about his lawyer’s alleged advice for what he did and didn’t need to disclose to investors.

•  The justices considered whether a person’s motivation in posting a negative online review should play a role in that review’s connection to the public interest.

Other Supreme Court news

•  By 5-2, the justices allowed Boulder County and the city of Boulder to sue fossil fuel corporations under state law for alleged harms their conduct caused locally due to climate change. Justice Carlos A. Samour Jr., writing in dissent, took the unusual step of asking the conservative-majority U.S. Supreme Court to intervene.

•  The post-accident medical records of a truck driver are off-limits in a civil lawsuit, including the portion where he described the fatal crash to his treating physician, the state Supreme Court decided.

•  A trial judge inappropriately removed a district attorney’s office from a criminal prosecution because of perceived unfairness to the defendant, the court ruled.

•  After a 2023 U.S. Supreme Court decision (coincidentally, out of Colorado) created a higher hurdle for stalking prosecutions, the state’s justices clarified that the new requirement doesn’t apply when stalking charges are based on a defendant’s conduct, rather than his speech to his victim.

•  A defendant’s statements via text message weren’t “coerced” even though a law enforcement investigator was secretly guiding the exchange on the other side.

•  The Supreme Court agreed to answer a question posed by a federal judge: Does Colorado law prohibit employers from firing someone because they used self-defense in the workplace?

•  The justices may intervene in an eviction case out of Denver where the clerk’s office is refusing to accept the tenant’s payment to appeal his eviction, and also in a civil lawsuit with an alleged ethical conflict by one law firm.

•  During a recent “Courts in the Community” visit to Falcon High School in El Paso County, the Supreme Court talked about the best/worst parts of their jobs and the (very limited) extent of their political participation.

Q&A with Gordon Gallagher

•  U.S. District Court Judge Gordon P. Gallagher was part of the wave of turnover on Colorado’s federal trial court during the Biden administration. He is also the first district judge to be stationed outside of Denver. Gallagher spoke with Colorado Politics about why he draws his civil caseload statewide, rather than just from the Western Slope, and about his confirmation process, among other topics. Here is an excerpt:

Colorado Politics: Can you think of any argument in favor of allowing you to be the single-judge, Western Slope division for our court?

Gordon Gallagher: I guess if you had certain cases where if you wanted absolute consistency across that type of case, I think that’s a good reason in criminal cases to have that. Civil cases are all just so very different. I just don’t think there are good reasons that judge-shopping should be the favored mechanism. In fact, I think it should be a disfavored mechanism.

This is not to cast aspersion against any particular political group because lots of political groups do it. I think it was mentioned yesterday (May 15) in the oral arguments having to do with nationwide injunctions. I think one Supreme Court justice commented on, in one administration, there’s a division or district in Texas that’s been picked for many cases and in another administration, there’s a district in California that’s been picked.

It happens on both sides. In a world where there’s often distrust of government and of judges, I think anything we can do to have more fairness in the system is the right way to do it.

Heard on appeal

•  By 2-1, the state’s Court of Appeals upheld a judge’s decade-old violation of Colorado’s crime victim restitution law.

•  For the first time, the Court of Appeals decided the overhauled jury instruction for “reasonable doubt,” which was released in 2023, is a valid statement of the law. In fact, two separate appellate panels reached that conclusion, with one panel feeling more strongly that jurors should be told to also consider the “lack of evidence” when assessing guilt.

•  Both sides appear to be satisfied with where the court landed:

It is critical for jurors to be instructed by the judge that reasonable doubt may include the “lack of evidence” in a criminal trial. That is a correct statement of law, and it is essential for jurors to affirmatively consider that the lack of evidence, including the state’s failure to properly investigate, can form the foundation of reasonable doubt. When jurors don’t understand this concept due to insufficient jury instructions, it prevents them from appropriately holding the prosecution to their burden of proof, which is fundamental to a fair trial. —David Maxted, president-elect of the Colorado Criminal Defense Bar

We are pleased that neither appellate panel took issue with the reasonable doubt instruction. … And, as these cases make clear, the (model) instruction accurately states the law and protects a defendant’s right to a fair trial. These cases confirm that the reasonable doubt instruction is both proper and appropriate. That confirmation is helpful, particularly for trial judges looking for direction in evaluating defense motions requesting the previous version of the instruction. —Boulder County District Attorney’s Office

In federal news

•  The U.S. Court of Appeals for the 10th Circuit found Denver’s former police chief cannot be sued for authorizing force against protesters that resulted in an injury to the plaintiff’s finger.

•  Pueblo County sheriff’s deputies will face a civil jury trial for fatally shooting a man, a federal judge ruled, and the deceased’s mother prevails outright because law enforcement arrested her without justification.

Vacancies and appointments

•  The governor has appointed Magistrate Timothy L. Johnson to succeed retiring Chief Judge Ingrid S. Bakke on the Boulder County District Court.

•  There are three finalists to succeed resigning Morgan County Court Judge Dennis L. Brandenburg: Baca County Court Judge Lyudmyla “Milla” Lishchuk, David Jacob Kartchner and Christian D. Ryan.

•  There are also three finalists for a newly created judgeship in the 17th Judicial District (Adams and Broomfield counties): Adams County Court Judge Marques Alexander Ivey, Magistrate Sara Sheffield Price and Lochlin Isaac Slifkin Rosen.

•  Finally, there are four candidates for two vacancies in the Fourth Judicial District (El Paso and Teller counties), one of which is a new seat and the other is the seat of resigning District Court Judge David A. Gilbert: Amy Patricia Cullen Cano, Magistrates Sherri R. Gryboski and Kelly June McPherson, and Joseph Allen Peters.

Miscellaneous proceedings

•  A lawsuit is challenging a recently enacted transgender rights law in federal court.

•  The Gazette reported on the federal criminal trial involving a hate crime “hoax” during the 2023 Colorado Springs mayoral election.