A Denver lawyer is proposing a key structural change to how the state’s appellate court decides cases.
Christopher M. Jackson, an attorney with Holland & Hart, has authored a forthcoming paper in the University of Denver's Denver Law Review Forum that advocates for the ability of the Colorado Court of Appeals to decide cases with all 22 judges. The legal term is "en banc," which is French for "on the bench."
“[M]ost intermediate appellate courts have the ability to sit en banc in a particular case if they so choose,” Jackson wrote. “In the federal circuit courts, for example, a majority of active judges can vote to hear an appeal en banc; that vote vacates the judgment and allows the court as a whole to consider the appeal and issue its own opinion. But at the Colorado Court of Appeals, no such mechanism exists.”
Currently, the appellate judges decide cases in three-member panels, known formally as divisions. Unlike the state and federal supreme courts, both of which allow all justices to participate in every decision, the Court of Appeals does not have the discretion to take a pass on cases.
In fiscal year 2018, the Court of Appeals saw between roughly 180 and 240 case filings per month, for a yearly total of 2,308 cases. The state’s Supreme Court issued 103 written opinions that year, and last year only took on 49 cases from the appellate level.
In advocating for the change, Jackson pointed out that the decisions of Court of Appeals panels are not binding on each other, known as “horizontal precedent.” Such a feature exists in other states and at the federal level.
“Because the court can’t sit en banc to consider and potentially overturn a panel decision, it would make little sense to allow two out of twenty-two judges to bind the court as a whole,” Jackson argued in the paper. “Because the Court of Appeals doesn’t have en banc review, it doesn’t have horizontal precedent.”
On its website, the Colorado Judicial Department notes that "although judges recognize the importance of deference to earlier decisions, each division may view the law differently and issue a conflicting decision."
State statute does allow for the hearing of certain cases by all 22 judges, but only if the state Supreme Court issues a rule, which it has not done to date. Federal law allows for a modified form of en banc hearings for courts with more than 15 judges, in which a panel of more than three judges but fewer than the whole court can hear a case.
While other states mirror Colorado’s practice, North Carolina allows for en banc hearings if a majority of judges vote to allow it. New York, by contrast, limits judicial panels to five judges. Jackson believes that changing current procedures in Colorado would prevent different panels from continuing to reach separate conclusions on the law, unbound by prior rulings.
“This ensures greater uniformity, consistency, and fairness at both the trial and appellate level,” he wrote. “Without en banc review, when divisions split on a legal issue, that split can persist for years, until the Supreme Court takes up and decides the issue on its own.”
Sen. Mike Foote, D-Lafayette, who is an attorney, called the proposal one worth discussing. “My main question as a policymaker would be how much would it be used and whether that usage would justify the additional resources necessary to implement it,” he said.
Jackson told Colorado Politics that his support for the idea was "tentative," and he wanted to hear the thoughts of others. But he became a stronger proponent of the concept after researching other states' practices. Jackson believes that reducing the number of three-member panel decisions means that the Supreme Court will spend less time weighing in on conflicting rulings, and would provide more certainty for litigants. While he acknowledged that it could be costly to assemble the complete set of appellate judges for decisions, Jackson noted that even at the federal level, en banc review is rare, amounting to approximately 40 cases at the circuit level in 2019.
The Judicial Department had no position on the proposal, according to a spokesperson.
“If a formal proposal is made to allow en banc consideration by the Court of Appeals, that proposal first would go to the Appellate Rules Committee, whose members would decide whether to make a recommendation to the Supreme Court,” the statement read. “The Supreme Court would accept public comment and hold a public hearing before deciding whether to make the change."