Rocky Mountain Appellate Blog

Supreme Court Applications Due September 19

The Colorado Supreme Court Nominating Commission is not wasting any time moving forward with the selection process for Justice Martinez's replacement.  On the heels of Justice Martinez's surprising announcement comes this Supreme Court press release issued this morning:

The Colorado Supreme Court Nominating Commission will meet on Oct. 3, 2011, to review applications, and again on Oct. 11 and 12, 2011, to interview candidates and select nominees for appointment by the governor to the Colorado Supreme Court.  The vacancy will be created by the resignation of Justice Alex J. Martinez.  The vacancy will occur on Oct. 31, 2011.

To be eligible for appointment to fill the vacancy, the applicant must be a qualified elector of the State of Colorado and must have been admitted to the practice of law in Colorado for five years.  The current annual salary for this position is $139,660.  The initial term of office of a Supreme Court justice is a provisional term of two years; thereafter, the incumbent justice, if retained by the voters, has a term of 10 years.

Application forms are available from the office of the ex officio chair of the nominating commission, Chief Justice Michael L. Bender, or from the Supreme Court Clerk, Christopher T. Ryan, 101 W. Colfax, Suite 800, Denver, CO 80202.  Applications also are available on the court’s home page at: http://www.courts.state.co.us/Careers/Judge.cfm

The original signed application and an identical copy of the application in electronic form as a single, text-searchable PDF file must be filed with the ex officio chair no later than 4:00 p.m., Sept. 19, 2011.  Late applications will not be considered.

Mandatory Judicial Retirement and Gov. Hickenlooper's Supreme Court Picks

The Denver Post blog, The Rap Sheet, has a short post noting that Governor Hickenlooper will have the opportunity to nominate a new justice to replace Justice Martinez on the Colorado Supreme Court.  Yesterday, Justice Martinez announced his intention to resign at the end of October to become Denver's new manager of safety.

The Post's blog entry is accurate as far as it goes.  However, what it overlooks is that with Justice Martinez's intended resignation Governor Hickenlooper will name at least two justices to the Supreme Court during his current term as governor. 

Article VI, Sec. 23(1) of the Colorado Constitution requires that state court judges, including justices of the Colorado Supreme Court, retire upon "attaining the age of seventy-two."  According to his biography on the Court's website, Chief Justice Bender will turn 72 on January 7, 2014.  At that time, Governor Hickenlooper will have almost exactly one year left in his current term and will have the opportunity to appoint a new justice to the Court.  Thus, absent any additional retirements from among the current justices, Governor Hickenlooper will have at least two appointments during his current term.

The retirement of Chief Justice Bender will also result in the election of a new chief justice.  Unlike the federal judiciary where the president appoints an individual to serve as Chief Justice of the U.S.  Supreme Court, the seven justices of the Colorado Supreme Court elect one of their own to serve as chief justice.  Based purely on my own idle speculation, I'm going to borrow an idea from the Colorado Pols website and argue that the Big Line would have Justice Rice (75%) as the early favorite to succeed Chief Justice Bender. 

Another Opening on the Colorado Supreme Court?

The Denver Post is reporting that Justice Alex Martinez may resign from the Colorado Supreme Court to become Denver's Manager of Safety.

Justice Martinez was initially appointed to the Court by Governor Roy Romer in 1997.  He was just reelected to a second ten-year term in Nov. 2010.  Justice Martinez is one of the more liberal members of the Court, particularly on criminal justice issues.  His resignation would give Governor Hickenlooper his first court nomination.

Denver District Court Halts Douglas County Voucher Program

This past Friday, Denver District Court Judge Michael Martinez issued a permanent injunction halting the Douglas County Choice Scholarship Program which provides vouchers to Douglas County students to attend private schools -- including sectarian institutions. A copy of the order is available here. 

The order includes a lengthy analysis of Colorado's constitutional provisions addressing the separation of church and state. I was not familiar with these sections of the Colorado Constitution and was suprised to see that they are far more extensive than their federal counterparts.

It will be interesting to see if Defendants seek expedited review of this order by the Colorado Supreme Court pusuant to C.A.R. 50 which permits parties to effectively bypass the court of appeals under certain circumstances.

It Appears We Now Have a Circuit Split

Word in the legal blogosphere and from Reuters . . . see here  . . . has it that the 11th Circuit has declared the individual mandate unconstitutional.  We now appear to have a split between the 6th and 11th circuits on this issue setting it up for likely SCOTUS review.

Another Federal Appeals Court Rules Health Care Law Unconstitutional

The Wall Street Journal is reporting that the 11th Circuit just issued a 2-1 decision striking down the individual mandate to purchase health insurance included in the federal health care law.

Questions of First Impression

 In United States v. Prince (No. 01-3180), the Tenth Circuit held as matters of first impression that the Constitution does not bar the government from using preemptory challenges to strike jurors based on their views regarding marijuana legalization. In so doing, the Court noted that “[t]here is no precedent . . . for extending Batson to exclusions based on the beliefs of prospective jurors. And in fact, every court we could find has expressly refused to extend Batson” beyond preemptory strikes used to exclude groups receiving heightened protection under the Fourteenth Amendment. The court rejected the application of death penalty cases on this issue to political, religious, or social views generally.

The Tenth Circuit also addressed a more technical issue of first impression, and held that decided that a conviction under 18 U.S.C.§ 924(a)(1)(A), which criminalizes making false statements to federally licensed firearms dealers, does “not require a defendant to know that his false statement will be kept in the firearm dealer’s written records, as mandated by federal law.”

An Exercise in Judicial Restraint

Last week, the Colorado Court of Appeals held that the Colorado Open Meeting Law ("COML") does not preclude a home rule city from conducting business using secret ballots.  In Henderson v. City of Ft. Morgan, Case No. 10CA1409, the Court of Appeals affirmed a District Court decision that the Ft. Morgan City Council's use of secret ballots to fill two vacancies on the City Council and a vacant magistrate judge position did not violate COML, C.R.S. sec. 24-6-401 to -402.

Prior to voting, the City Council conducted two public meetings where the Council heard presentations from the city council applicants, alloted time for the public to speak about the applicants, and conducted interviews with the magistrate judge applicants.  After these presentations, the City Council voted by written ballot.  Copies of the ballots were retained by the City and obtained by Plaintiff through a CORA request.

Reviewing the plain text of COML, the panel concludes that the statute simply does not impose a particular voting procedure on local government agencies, let alone a procedure that prohibits the use of anonymous ballots for the appointment of government officials. Because the Court holds that the statute is not ambiguous on this point, it does not look beyond the text of the statute to consider legislative intent.

In reaching this holding, the Court contrasts Colorado's statute with similar laws in other states which expressly forbid the use of anonymous ballots.  "Had the legislature intended to prescribe a voting procedure, and for that matter a procedure prohibiting anonymous voting, it could have said so plainly."  Moreover, the Court notes that in a separate statute the General Assembly has prescribed a particular voting procedure for municipal bodies when voting on particular subjects.  See C.R.S. sec. 31-16-108 ("On the adoption of an ordinance, resolution, or order for the appropriation of money or the entering of a ontract by the governing body of any city or town, the yeas and nays shall be called and recorded, and the concurrence of a majority of the governing body shall be required.").

Last week, the Denver Post published an editorial describing this ruling as a "cloud" on COML.  The editorial goes on to argue that the Court's ruling is in direct contradiction with the General Assembly's intent in enacting COML to ensure that "the formation of public policy is public business and may not be conducted in secret."

Unfortunately, the editorial does not engage in the substance of the decision in any meaningful way, instead it declares that the decision "boggles the mind."  In particular, the editorial makes no effort to address the Court's distinction between conducting business in open meetings -- which is clearly required by the COML -- and the use of particular voting procedures to decide an issue -- a subject not addressed by the COML.

If the Denver Post is correct, and the General Assembly obviously intended to forbid the use of secret ballots when it enacted COML, there is a simple solution: the General Assembly should promptly amend the law to clarify this point.  Absent such an amendment, it is not the job of the courts to rewrite statutes to add a provision endorsed by the Post.

“Everyone enjoys a trip to the mountains in the summertime”

But at least in some instances, they have to pay for it. Such is the holding in Scherer v. United States Forest Service (No. 10-1418), in which the Tenth Circuit declined to reject a facial challenge to the Forest Service’s “amenity fee” policy. It hinted strongly, however, that it might sustain an as-applied challenge to policy. It also hinted that legal errors and poor strategic choices by the plaintiffs, such as misunderstanding the standard for bringing an as-applied challenge and urging that the usual standard for facial challenges should not apply, doomed the case.

Rule 701 and Landowner Testimony

In James River Ins. Co. v. Rapid Funding (No. 10-1145), the court held that Colorado Rule of Evidence 701 does not allow landowners to provide expert testimony regarding valuation without first qualifying as an expert. Colorado Rule of Evidence 701 (which mirrors F.R.E. 701) includes a committee comment noting that the rule is not intended to foreclose an owner from giving an opinion as to the value of his or her real property. The Tenth Circuit held that under Colorado law “landowner valuation testimony, if not based on technical or specialized knowledge, may be admitted as lay opinion testimony” but that the rule did not allow lay landowners to avoid Rule 702 and give testimony based on technical or specialized knowledge without qualifying as experts.