COURT WARS | State Supreme Court has busy week, update on vaccination cases | courts

Welcome to Court Crawl, Colorado Politics’ third-branch news round-up. The Colorado Supreme Court made several key decisions last week and heard oral arguments in two follow-up cases as federal courts continue to weigh challenges to state vaccination mandates.

Make My Day, legal analogies get clarity from judges

The country’s Supreme Court considered whether the basement of an apartment building is a place where a resident can use lethal force in self-defense against an intruder. The answer is yes.

Under the state’s “Make My Day” law, which Colorado Politics detailed last year, residents of “apartments” gain immunity from prosecution if they act in self-defense against an unlawful intruder. It was unclear whether the common rooms of apartment buildings count as apartments. The Supreme Court clarified that they didn’t answer “yes” to all the rough edges of every structure — but in the case of Patrick Rau, who killed a man in the basement of his Colorado Springs building, this common area was part of his apartment.

The judges also sent a message to state court judges: Be very careful when explaining the concept of “reasonable doubt” to a jury. The Supreme Court found that an Adams County judge had crossed the line when he deviated from the script in jury selection, comparing reasonable doubt to a crack in the foundation of a house.

Colorado Politics last year similarly explored the use of reasonable doubt illustrations and why defendants claim they can reduce the burden of proof needed to convict them. For years the Court of Appeals has advised judges — particularly those in Adams County — to be cautious, but a handful of trial judges have continued to ignore those warnings.

Eventually, the Supreme Court issued a 6-1 ruling, allowing defendants to claim that they committed harassment in the name of self-defense.

Members of the Colorado Supreme Court are scheduled to attend hearings on September 15, 2021 when COVID-19 protocols are still in effect.

Judges are considering immunity (and not the COVID kind)

In hearings last week, the Supreme Court considered a logistical pickle: the General Assembly has specifically said that pre-trial detainees can sue prison operators for negligent injuries. But what if the prison operator had one politics to cause injury? Can’t they be held accountable because they knew what they were doing?

The case originated after El Paso County Sheriff Bill Elder arrested a man at the request of federal immigration officials, even though the detainee had been released from prison. Because Elder was not negligent — he was intentional — he argued that he could not be held liable for the extended detention. The judges weren’t so sure.

This interpretation is “not only counterintuitive to me, but absurd”. – Judge Carlos A. Samour Jr.

On a related issue, judges attempted to unravel a web of laws designed to hold insurance companies accountable for unreasonable delays or refusals to pay. The question is whether the General Assembly also wanted individual loss adjusters to share in this liability. Several industry groups warned the Supreme Court against allowing employees to be personally sued over their insurance payout decisions, a message some judges clearly heard.

“Who in their right mind would want to take on that job as a claims adjuster when you’re routinely staring down the barrel of that kind of liability?” – Judge William W. Hood III

HEADSHOT William W. Hood, III

Colorado Superior Court Justice William W. Hood, III

Also noteworthy: The oral hearings became a purely online format again, probably due to the spread of the omicron variant.

vaccination cases

A federal judge dismissed a lawsuit filed in Colorado that sought to halt the COVID-19 vaccination mandate for the military, particularly military members who allegedly have “natural immunity” to a prior infection.

The U.S. Supreme Court also blocked the Biden administration‘s vaccination or testing mandate for larger employers, while allowing a policy on vaccinations for healthcare workers to go into effect.

Vacancies and appointments

The governor appointed Magistrate William H. Moller To become a judge in the District Court in the Fourth Judicial District of El Paso and Teller counties. He succeeds Timothy J. Schutz, who received an appointment to the Court of Appeals last year.

Another vacancy has been posted in the Fourth Circuit with the retirement of Judge G David Miller. Applications are due until February 11th.

The Denver District Court is trying to fill a magistrate’s vacancy, and Applications are due until February 1st.

The US Senate Judiciary Committee delayed a vote on the nomination last week Charlotte N Sweeney to become a federal judge in Colorado. A vote is now scheduled for this Thursday.

A look at Title IX

This week’s Colorado Politics cover story looks at the Title IX lawsuits filed in Colorado over the past 30 years, making claims under the 50-year-old civil rights statute that prohibits gender discrimination in state-funded educational activities. The lawsuits involved unfair spending on athletics, victims of sexual harassment who claimed their schools were willfully indifferent, and accused abusers who were being pursued by investigations. Here is an excerpt:

Attorney General Phil Weiser, a professor and dean of the University of Colorado Law School before his election, said he received annual justice and equality training. Now his office defends many state entities sued for Title IX violations. Weiser said that athletics equity was a “first generation issue” for Title IX and that schools, policymakers and courts had moved to other sources of tension.

He recognized the potential for injustice that exists for both complainants and defendants.

“Due process, as commonly understood by attorneys, means giving you notice and an opportunity to be heard. So if you manage to conduct an investigation where the alleged perpetrator was never approached and never had an opportunity to tell them that side of the story, and you had a decision that negatively impacted that person, that’s a problem.” , he said.

“The other side is probably the one I’ve heard more about,” he continued, speaking of victims. “They are subject to ongoing harassment or even assault, and the question for the university is: do you maintain a safe environment where you prevent these assaults and do you take action against harassment?”


Colorado Attorney General Phil Weiser, left, walks with his communications director Lawrence Pacheco from the Supreme Court chambers to his office at the Ralph L. Carr Colorado Judicial Center in Denver on January 12, 2021.

Different choices

The state Court of Appeals has determined that people in need facing a government-initiated contempt proceeding have the right to an attorney.

Campaign contributions to local elected officials may, in rare circumstances, require them to withdraw themselves to prevent possible violation of the Constitution.

A Jefferson County judge should have suspended a virtual parental rights hearing while the father struggled to register, the appeals court found.

Because the Denver sheriff was not the final policy-maker regarding payroll, the deputies’ union could not hold the city liable for the sheriff’s response to a dispute over fees.

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