Denver District Court judge slaps state ethics commission with injunction

The Ralph Carr Judicial Building, which houses the Colorado Independent Ethics Commission.

The Colorado Supreme Court has declined to hear an appeal challenging the University of Colorado's refusal to reveal the names of candidates during its 2019 presidential search. 

A lower court had previously found the university was not obligated under the law to make the semifinalists' identities public, and the justices' decision has left that ruling in place.

The justices on Tuesday took a pass on dozens of other appeals, but indicated they would consider whether courts have "judicial tie-breaking" authority to resolve the question of where a divorced couple's children should attend school when the parents cannot agree.

Secrecy of CU candidates

On March 4, the Court of Appeals decided Colorado's open records law did not require CU to disclose the names of six people the board of regents interviewed during its 2019 search for a new president.

The Daily Camera sued after the university refused to disclose documents about who applied for the job, which ultimately went to Mark Kennedy, the sole finalist. (Kennedy, a controversial choice, quit earlier this summer.) A trial court judge had previously determined CU had a legal duty to release the records of the six semifinalists, but a three-member panel of the Court of Appeals reversed that order by a 2-1 decision.

"We fully acknowledge that, as written and as we apply the statutes, [Colorado's transparency laws] are subject to abuse by appointing entities because they can structure their appointment process to limit applicant disclosure to only one finalist," wrote Judge Michael H. Berger for the majority. Nonetheless, the court determined the laws allowed CU to treat Kennedy as the sole public finalist, thereby allowing the other interviewees' identities to remain secret.

Judge Jerry N. Jones disagreed, arguing the law envisions there will always be multiple finalists for a job unless there is only one applicant, and that the majority's interpretation would allow public institutions to manipulate the definition of "finalist" to suppress information.

The Daily Camera appealed to the Supreme Court, which declined to hear the case on Tuesday without elaboration. During this year's legislative session, the General Assembly passed a bill to clarify that public institutions have the right to do as CU did and only declare one finalist for an executive-level position.

Against the urging of transparency advocates, Gov. Jared Polis let the measure become law without his signature, asking legislators to monitor whether the law has "struck the right balance" between governmental accountability and protecting the privacy of applicants.

The case is Prairie Mountain Publishing Company v. Regents of the University of Colorado.

Deadlock over kids' schooling

The justices have chosen to review a case out of Jefferson County involving two divorced parents who cannot agree where their children should attend school.

District Court Judge Randall C. Arp, who is overseeing the couple's parenting plan, decided he had no authority to resolve such a dispute unless the children are endangered. The children's father, Hakiowskie Flores, appealed to the Supreme Court, arguing the justices needed to address whether a "judicial tie-breaking" ability exists when parental decisions are at an impasse.

Flores's attorneys, Christopher J. Linas and Caroline C. Cooley, contended that other courts routinely do this without being corrected on appeal.

"Either the trial court in this case has seriously erred, or most other courts in this state are regularly violating Colorado law on a massive scale with the Court of Appeals’ blessing," they wrote to the Supreme Court.

Flores is seeking an order requiring the lower court to make a school attendance decision based on the children's best interests. He alleges their mother has refused to meaningfully engage in the school choice process, while he has identified a school that he believes would best suit the children. The school district, in turn, has decided which school the children will attend for the 2021-2022 school year because the parents were at odds.

"Every school year, every school semester, and every school day that the children attend a school not determined to be in their best interests is lost forever," Flores's attorneys wrote to the Supreme Court.

The case is In Re the Marriage of Flores.

Other appeals denied

The Court declined to hear the appeal of N’neka L. Crews, who a Denver jury found guilty of leaving the scene of a September 2017 accident. According to Crews, she tried to maneuver around a man who was threatening to shoot her, but she could not avoid him with her vehicle. The victim testified that Crews was the aggressor, and drove into him purposefully.

In December of last year, the Court of Appeals upheld Crews's conviction, finding there was no need to prove Crews knowingly left the scene of an accident after causing an injury. But Justices Richard L. Gabriel and Maria E. Berkenkotter indicated they would have granted Crews's appeal so the Court could determine whether prosecutors had to prove she had knowledge of her crime.

It takes three justices on the seven-member Court to agree to hear a case.

Gabriel and Justice Carlos A. Samour, Jr. also noted they would have heard the case of Adam Taft Snider. An Adams County jury convicted Snider of second degree assault on a peace officer, resisting arrest and obstructing a peace officer after he led two sheriff's deputies and a sergeant on a foot chase. Snider maintained the officers beat him without provocation, while the record showed Snider tackled and hit a deputy after he could not evade them.

The Court of Appeals determined that because Snider had not admitted he assaulted the deputy, he was not entitled to have the jury consider whether he acted in self-defense. Gabriel and Samour would have granted Snider's appeal to the Supreme Court to determine whether the absence of a self-defense instruction violated his rights.

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