Good Government Colorado's State and Local Government Reforms

Alcohol Regulation

* It is absurd to regulate beer, wine, and liquor differently.

Construction Regulation

* The construction trades should be regulated at the state level rather than at the local level as they are now. This may have made sense when construction markets were local. Colorado currently has 273 active municipalities (comprising 198 towns, 73 cities, two consolidated city and county governments), and 62 unconsolidated counties, for a total of 335 different bodies licensing the construction trades. Most of these professionals should not exclude people with felony records unrelated to the construction trades.

* Each of these jurisdictions also has its own building code, based upon privately promulgated building codes that aren't even available for free which is unconscionable for binding laws. There should be a single state building code, that is a matter of public record. If localities want to deviate from it, they should have to seek permission from a state body to do so, and the local modifications ought to be a matter of public record on a state website. Aesthetic building code requirements should be tightly limited.

TABOR Elections And Taxes

* Elections over retaining growth in revenue not derived from new taxes should be abolished.

* Excess TABOR revenue should, by default, placed in a rainy day fund, rather than refunded. A supermajority would be required to touch a rainy day fund in excess of declines in revenue from the previous peak revenue year.

* The state 2.9% sales tax would be repealed and replaced with a revenue neutral income tax increase. Only local sales taxes would remain. But, all local sales taxes would be collected by the state and would be required to use the uniform state definition of taxable sales.

* School districts should be funded by state taxes and not by property taxes. As a result, there would no longer be elections for local property tax levies and bond issues for school districts.

* Higher educational institutions would have tax funding solely by state taxes, not local taxes.

Election Administration

* Elections should be administered by non-partisan civil servants, under the supervision of a partisan balanced board or boards. This task should be severed from the partisan elected offices of state secretary of state and county clerk, and from the non-partisan elected office of city clerk.

Elected Offices

* City clerks should not be elected.

* Statutory cities and towns have a city manager with the mayor elected by the city or town council as its chair, and do not have a have separately elected mayor or auditor.  Charter cities can do what they want.

* County coroners should not be elected and the institution should be replaced with a state medical examiner's office.

* County surveyors should not be elected.

* County treasurers should not be elected.

* County assessors should not be elected.

* County clerks should not be elected.

* County sheriff should be a non-partisan office. It is desirable not to give the local administration of criminal justice system a partisan tinge. This is less alienating between elections to the losing party members. Counties are often often politically homogeneous areas where intra-party competition is really more important the partisan competition anyway. This gives minority party members in a county more say in the outcome.

* County commissioner should be a non-partisan office. It handles local government issues like municipalities do. Counties are often politically homogeneous areas where intra-party competition is really more important the partisan competition anyway. This gives minority party members in a county more say in the outcome. In large counties there would be five seats elected from single member districts, all at once, for four year terms. In small counties, county commissioners would serve for six year terms with one elected every two years.

* District attorney should be a non-partisan office. It is desirable not to give the local administration of criminal justice system a partisan tinge. This is less alienating between elections to the losing party members.

* The state treasurer should not be elected.

* The state secretary of state should not be elected.

* The state attorney-general should not be elected.

* Uncontested elected offices should not appear on the ballot unless there is a declared write-in candidate before ballots are printed.

* School boards should be elected by the parents, except possibly by the students instead, in the case of high school students.

* The state school board should be appointed.

* The University of Colorado Board of Regent should not be elected by the general public. It would be better for these positions to be elected by alumni. The state still controls the purse strings, but this would strengthen academic freedom and ease the burden on the voters.

* Any other currently elected higher education district boards should be elected by alumni or appointed.

State And Local Judges And Courts

* Judges should be required to be lawyers with at least five years of experience. The four non-lawyer rural county court judges currently in office in Colorado should be grandfathered for their current terms, but not retained.

* The county courts should be consolidated to have a single limited jurisdiction division of the district court in each judicial district called the county court division of the district court, with a court house in each county and should be staffed with full time judges only.

* Judicial retention for judges not on the state supreme court should be decided by a vote of the judges at the next higher level, not the voters. So, county court division judicial retention should be decided by district court judges, district court judicial retention should be decided by court of appeals judges, and court of appeals judicial retention should be decided by state supreme court justices. These are the people best qualified to evaluate the performance of lower court judges.

* State supreme court justices should be limited to a single fourteen-year term of office, with one new justice appointed in the current process every two years in the absence of vacancies. 

* Vacancies in the state supreme court should be filled for the remainder of the term of the vacating justice (without prejudice to a further appointed term) by a court of appeals judge elected from the sitting judges of the court of appeals.

* The judicial discipline process should be more transparent.

* Court facilities and budgets, district attorneys offices, and public defender's offices should be financed at the state level, not the county level, to keep the judicial branch and district attorney's office independent from municipal and county government.

* Municipal courts should be abolished, with the ordinance violations previously in their jurisdiction prosecuted by city attorneys in the county court division of the district court before state appointed judges.

* County court appeals should be to a single judge of the court of appeals, not to a single district court judge otherwise on the same basis as under current law. There would be no municipal court appeals because there would no longer be any municipal courts.

* Colorado Appellate Rule 21 petitions (i.e. discretionary requests for extraordinary relief granted only when no other adequate remedy, including relief available by appeal or under C.R.C.P. 106, including petitions in the nature of mandamus, certiorari, habeas corpus, quo warranto, injunction, prohibition and other forms of writs cognizable under the common law) should be made to a designated panel of seven judges of the court of appeals (rotated annually) rather than to the state supreme court.

* The number of judges on the court of appeals should be doubled to allow it to process appeals more swiftly.

* Review of attorney regulation disciplinary hearings should be made to the court of appeals rather than to the state supreme court.

Remaining Elections

Candidate Elections

* There would be one election every November on election day, and a primary election (in parties and districts with contested races) in every even numbered year for state and federal offices. A partisan caucus would precede each primary election every even numbered year. Ballot issues would be restricted to November elections except for local recall elections and emergency local tax and bond measures.

* There would be one non-partisan local election in November in each odd numbered year. 

* In the year following the Governor's election there would be statutory municipal elections (with all municipal offices elected at once), and district attorney elections (and county commissioner elections in small counties) for a total of one or two offices plus city council races for each voter in statutory cities and towns. 

* In the odd numbered year two years after that there would be elections for county commissioner, sheriff and special district elections in the other (usually two or three races per voter). 

* Charter cities do what they want, but limited to odd numbered year elections except for recalls and for emergency ballot issues for referred tax matters or legally required referred charter amendments held when needed.

* There would be partisan caucuses and primaries (with unaffiliated voters allowed to participate in a primary of their choice, but not caucuses) in each even numbered year followed by a partisan general elections in November for state house, state senate, U.S. House, U.S. Senate, the Governor-Lieutenant Governor, and the President. The Governor-Lieutenant Governor election would be two years after the Presidential election. No election would have less than three or more than five offices to vote upon at a time, unless there was a U.S. Senate vacancy to be filled at the time, in which case there would be four to six offices. 

* Write-in candidates would not be allowed in primary elections and uncontested primary elections would not appear on the ballot. 

* All elected offices except the U.S. House and state house with two year terms, and the U.S. Senate with six year terms, would be for four year terms.

* All single member elected office races would require a majority to be elected, with a runoff of the top two candidates otherwise.

* City councils would fill municipal office vacancies. County commissions would fill county commissioner and sheriff vacancies. Special district boards would fill vacancies on their boards. State legislature vacancies would be filled by partisan vacancy committees. Governor vacancies would be filled by the Lieutenant Governor. Lieutenant Governor vacancies would be filled by the Governor (unilaterally). The law would provide for Governor's succession in other cases. The Governor would fill U.S. Senate vacancies until the next even numbered general election at which time a vacancy election for any remaining part of the vacant seat's term would be held.  U.S. House vacancies would be filled in special elections as under current law.

* Recall elections of particular local elected officials (city elected officials, county commissioners, sheriff, special district, district attorney), held promptly in the time frames allowed by law.  Vacancies created by recall elections would be filled like any other vacancy. Do not allow the recall of state legislators or the Governor, although the state legislature could impeach the Governor in a mirror of the federal process.

Ballot Issues

* Referred municipal or special district tax increase or bond issue ballot issues (during municipal or special district elections as the case may be, unless an emergency is declared by a supermajority of the city council or board, two-thirds unless there are just three members in which case it must be unanimous).

* Referred county tax increase or bond issue ballot issues (during county elections only, unless an emergency is declared by a supermajority of the county commission - unanimous if there are three members, four out of five if there are five members).

* Referred local charter amendment ballot issues (during municipal or special district elections). Legally required charter amendments would be adopted by the city council or special district board by majority vote.

* Local charter or legislation citizen initiatives (during municipal elections only for municipal measures, and during county elections only for county measures).

* State ballot tax increase ballot issues (referred only, during even numbered year elections in November only).

* State ballot issues on the state constitution or state legislation referred by the state legislature (during even numbered year elections in November only).

* Citizen initiated state constitution and legislative ballot issues (not impacting taxes, during even numbered year elections in November only).

* Newly passed state legislation would not be subject to referendums.

Colorado Judicial Retention Elections In 2022

Background

In a pre-election post on judicial retention elections in Colorado, I noted that the "Colorado Gazette reports:

A total of 164 judges were eligible for retention in 2022, but only 140 received evaluations and 135 chose to remain on the ballot. Judges may opt to resign or retire prior to their retention for multiple reasons, including the expectation of a negative performance evaluation.

Thus 24 judges decided not to run again before receiving evaluations from citizen's commissions and another 5 withdrew from the ballot after receiving their evaluations. 

I also noted that the system was adopted in a 1966 amendment to the Colorado State Constitution and remains a great improvement over the system in place before then."

I also predicted that 99.5% of judges facing judicial retention elections this year in Denver would be retained. 

The 2022 Judicial Retention Election Results

[Note that I have rounded down to the nearest full percentage point in all retention percentages in this post as it is easier to scan the Secretary of State's election results tables that way.]

None of them received less than 65% of the vote. Every single judge in Denver facing a retention election was retained.

Statewide 99.24% of the 132 judges facing retention elections in Colorado (that I counted in the election results, I apparently  missed three) were retained, while one county court judge in LaPlata County was not retained. Basically, my prediction, once you account for rounding errors, amounted to a prediction that either no judges or one judge would not be retained and this was correct.

There were eight Colorado Court of Appeals judge facing retention elections. Five of them were women. All of them were retained and none of them received less than a 67% retain vote. 

There were sixty-six district court (i.e. general jurisdiction trial court) judges facing retention elections. Twenty-six of them were women. All of them were retained and none of them received less than a 56% retain vote. 

There were sixty-two county court (i.e. limited jurisdiction trial court) judges facing retention elections. Thirty of them were women.  One was not retained and none of the other county court judges received less than a 60% vote to retain.

The one judge who was not retained (at least so far in the unofficial count) was LaPlata County Court Judge Ann Catherine Woods received a 49% retain vote. None of the other county court judges received less than a 60% retain vote. She resigned immediately, rather than serving out the remainder of her term. According to Colorado Politics at the link above:

In her resignation email to Chief Justice Brian D. Boatright, Woods alluded to her own missteps, as well as inaccurate perceptions of her work within the community.

"It has been a very, very challenging journey for me (some of which has been my own doing, some of which has been misinformation from small town media/word of mouth and lack of support from the 6th judicial district)," Woods wrote. "Also, because the voters have spoken and do not want me representing the community, I would like to step down as soon as possible instead of serving out the remaining term of my appointment."

Woods was one of 135 judges who stood for retention across the state this year. Citizen-led performance commissions found all 135 had met the performance standards used to evaluate judges.

At the same time, Woods was the first judge since 2010 to be non-retained despite receiving a favorable evaluation, according to the Colorado Office of Judicial Performance Evaluation.

The Sixth Judicial District's performance commission found, by 6-3, Woods met performance standards. Its narrative to voters further indicated Woods, a former public defender, had improved during her time on the bench.

However, Woods' ratings from attorneys and non-attorneys were lower than for other county court judges. Her retention also received an unusual degree of interest — 90 responses — compared to county court judges in jurisdictions with populations similar to La Plata County.

"The public still may be partially anchored on the view that Judge Woods is a pro-defense judge," the performance commission wrote.

In an email to The Durango Herald on Wednesday, Woods believed voters were "fed cherry-picked facts about a few sensationalized cases," and suggested the newspaper was responsible for disseminating misinformation.

Woods was a 2020 appointee of Gov. Jared Polis. The Herald previously reported that she emphasized rehabilitation over punishment in her sentencing. At the same time, the chief judge of the judicial district, in November 2021, effectively precluded her from setting bail for criminal defendants, after reported concerns about Woods granting bail at low amounts.

Notably, the judges who received low retention election support were mostly women. Of the 132 judges facing retention elections of whom 61 were women and 71 were men. 

Nine of the 132 judges facing retention elections received less than 61% support. Seven of those nine judges were women (11% of female judges facing retention elections), including the only judge who was not retained and all four judges who received more than 56% but less than 59% support. 

Two female trial judges (a County Court judge in Arapahoe County and a District Court judge in Weld County) and two male trial judges (both District Court judges in Pueblo) received more than 59% support but less than 62% support.

The other 123 judges (89% of female judges and 97% of male judges) received at least 63% support.

The county could judge with the least retention support who was retained (60%) was Kelly LeFave in Arapahoe County. The other sixty county court judges who were retained had at least 63% support.

At the District Court level, all sixty-six judges were retained and seven of them had retention support of 60% or less (rounding down). All other District Court judges had at least 64% support.

Five of these seven judges were women: District Judge Marla Prudek in the 4th Judicial District (El Paso and Teller Counties) received 58% support. District Court Judge Stephanie M.G. Gagliano in the 13th Judicial District (Kit Carson, Logan, Morgan, Philips, Sedgwick, Washington and Yuma counties)  received 56% support. District Court Judge Rayna Gokli McIntyre in the 17th Judicial District (Adams and Broomfield County) received 57% support. District Court Judge Kimberly B. Shutt received 56% support in the 19th Judicial District (Weld County). District Court Meghan Patrice Saleebay in the 19th Judicial District received 61% support.   

Two District Court judges receiving comparative low levels of retention support were men, both in the 10th Judicial District (Pueblo County). District Judge Amiel J. Markenson received 59% support. District Judge Thomas Flesher received 60% support.

Judicial Retention Elections In Colorado In 2022

Judicial retention elections apply to state court judges in Colorado and are up down, retain or do not retain elections with a majority need to remove a judge from office. If a judge is not retained, the vacancy is filled by a merit based system with the Governor having a say over which of the three finalists to appoint.

There are eight Colorado Court of Appeals judges facing judicial retention elections in 2022.

In Denver, there are twelve district court judges (the trial court of general jurisdiction) and nine county court judges (the trial court of limited jurisdiction) facing judicial retention elections in 2022.

If you must leave anything on your ballot blank, this is the place to limit the use of your voter research resources because the odds that all 29 judges on the Denver ballot will be retained is in the vicinity of 99.5% this year no matter what you make think about them personally.

I may or may not update this post to discuss the merits of retaining these judges.

The Colorado Gazette reports:

A total of 164 judges were eligible for retention in 2022, but only 140 received evaluations and 135 chose to remain on the ballot. Judges may opt to resign or retire prior to their retention for multiple reasons, including the expectation of a negative performance evaluation.

The system was adopted in a 1966 amendment to the Colorado State Constitution and remains a great improvement over the system in place before then. 

An Ordinary Appellate Court Ruling In Colorado

This post is not about an epic rule of law. It concerns the pedestrian and hardly "sexy" question of whether a county government can have liability when someone is injured by falling in a county parking structure allegedly caused by its failure to warn pedestrians of a hard to see step. This was decided by the Colorado Court of Appeals today.

Law professors love using these kinds of humble cases for teaching purposes to teach law to students (both in law school and in undergraduate legal courses like business law). This is the kind of case that would be perfect as a very first case in an undergraduate course about law like one that I took, called "practical law" when I was an undergraduate student.

I mention it for several reasons.

First, the decision is a rare, but increasingly common one, in which the opinion is illustrated with photographs embedded in the opinion itself. This makes this opinion less stale than dusty old English or early American cases that are common place in law school textbooks, making it feel more relevant and real and modern.

Second, the opinion also has the modern system of case numbers and paragraph numbers instituted to free litigants of the copyright protections that might apply (although case law later held that it did not) to commercial pagination of court opinions. Familiarity with this system is important in legal writing and research. 

Third, the decision is notable because the trial court judge ruled against the government (in a decision affirmed on appeal) on the legal status of the government that built, operates and maintain the courthouse from which the trial judge was ruling works, in regard to a parking lot that is literally right outside the front door of the courthouse. This illustrates Colorado's wisdom in having state court trial judges who preside in county courthouses appointed by the governor with secure tenure, allowing them to be independent in the lawsuits against local governments that frequently arise in these courts, rather than being appointed by local officials or as an ordinary partisan or non-partisan elected office, as many other states do. It provides a starting point to talk about state constitutional law, and the practical aspects of the separation of powers and judicial independence with a concrete example.

Fourth, it illustrates the basic rule of law regarding when premises liability exists, as well as a notable partial exception to that rule in some cases where the government owns real property. So, one can teach the private property and public property rules for liability in slip and fall cases in a single case.

Fifth, the decision, like most appeals regarding a claim of governmental immunity of some kind, is an interlocutory appeal, resolving the issue of governmental immunity before the case is litigated or tried. This is permitted in order to preserve the benefits of being immune and thus able to avoid litigation entirely, and not just not a rule that leads to a lack of liability on the merits. The general rule is that civil cases can only be appealed once a final judgment is entered in the case. So, it is a nice way to teach this fine point of civil procedure.

Sixth, it holds as a matter of first impression not decided by any previous Colorado appellate court, that the waiver of governmental immunity for dangerous conditions in public buildings extends to parking garages, and can apply to design and warning issues as well as failures to maintain the garage property (e.g. failure to remove snow and ice, or to repair cracked concrete). In a classroom setting, the "black letter law rule" that the case announces is often the least important point, because the law changes over time and can differ from one state to another, but it illustrates how new black letter law rules are created by the caselaw system of precedents in the U.S. legal system. The twenty-four pages the opinion takes to reach its really quite narrow and straight forward conclusion also illustrates the kind of reasoning and that depth of analysis that is typical in civil litigation.

For what it is worth, I believe that the case was rightly decided and the result is what I would have expected in this situation before seeing the opinion, as a lawyer whose first job in Colorado was with a firm that had a contract with CIRSA (the county insurance pool) to defend county governments from tort lawsuits.

Video Evidence Can Trump False Witness Testimony In Colorado

An new important decision by the Colorado Court of Appeals in the case of People v. Liebler, 2022COA21 (February 17, 2022), has established a key limitation to the general rule that an appellate court must defer to the conclusions of a trial court jury on issues of witness credibility. The official syllabus of the case explains:

In this direct criminal appeal, a division of the court of appeals considers whether witness testimony that is indisputably contradicted by video evidence can nonetheless be sufficient to support a conclusion by a reasonable jury that the prosecution proved an element of the charged offense — here, the use of force element of attempted aggravated robbery. As a matter of first impression, and under the circumstances presented, the division concludes that it cannot.

This is clearly the right decision, but one that contradicts the general rules that a jury verdict may be upheld if there is any competent evidence in the record (such as admissible testimony from a witness under oath) that supports its ruling, and that the credibility of witnesses is solely for the jury to determine.

Colorado Recognizes Right To Counsel In Remedial Contempt Cases Brought By The Government

There are not many circumstances in the United States where you have a right to have legal counsel appointed for you at government expense if you are indigent. But, last week, the Colorado Court of Appeals established a new class of cases where this right applies in the first clear Colorado case to do so, in the case of In re A.C.B., 2022CA3 (January 6, 2022) (this right had previously existed in Colorado from 1978-2011, when a new U.S. Supreme Court case muddied the waters).

The main class of cases where there is a right to counsel, first established in the U.S. Supreme Court case of Gideon v. Wainwright, 372 U.S. 335, 344 (1963), established this right for criminal defendants which was subsequently clarified to extent to any criminal proceeding in which incarceration was a possibility, Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), and to direct appeals from convictions in those cases (but not collateral attacks on convictions).

Another case extended the right to indigent defendants in termination of parental rights cases. 

There are three kinds of contempt of court proceedings that can result in incarceration.

One is called direct contempt, in which a judge summarily fines or incarcerates you for disrespectful content in the presence of the judge in court, without a separate proceeding or hearing (in theory this can be criminal or civil, depending upon whether subsequent compliance by the person held in contempt can cause that person to be relieved of further sanctions).

The second is called indirect criminal contempt a.k.a. indirect punitive contempt, in which you have allegedly willfully violated a court order outside the presence of the judge, and the court sentences you to a fine or incarceration to punish you for violating the court order (rather than to compel you to comply with it going forward) in a quasi-criminal proceeding often handled by the lawyer for the party benefitting from the court order rather than a government prosecuting attorney. It has long been clear that there is a right to counsel identical to that of criminal cases in these proceedings.

A third is called indirect remedial contempt, which is "civil" rather than "criminal" even though you can be fined (typically on a "per day" basis) or incarcerated until you comply with a court order which you have breached outside the presence of the court, if you are able to comply with the court order at any time, and are simply willfully refusing to do so. This too is a proceeding often handled by the lawyer for the party benefitting from the court order rather than a government prosecuting attorney.

In People v. Lucero, 196 Colo. 276, 284, 584 P.2d 1208, 1214 (1978), the Colorado Supreme Court, in a "direct contempt of court" case, held that 

“that the right to counsel must be extended to all contempt proceedings, whether labeled civil or criminal, which result in the imprisonment of the witness.” Id. at 284, 584 P.2d at 1214 (“Labeling the contempt civil and conditioning the incarceration on a continued refusal to testify does not alter the burden of imprisonment.”). 

This holding was stronger than the protection afforded under the U.S. Constitution as interpreted by the U.S. Supreme Court and some other states. 

The U.S. Supreme Court refused to extend Gideon and Argersinger to establish a per se rule for appointment of counsel in all civil proceedings where the possibility of imprisonment exists in Gagnon v. Scarpelli, 411 U.S. 778, 781, 788 (1973). Similarly, the Ohio Supreme Court, in the case of In re Calhoun, 350 N.E.2d 665, 666 (Ohio 1976) held that the Sixth Amendment right to counsel as set forth in Argersinger is inapplicable to civil contempt because that right is limited to criminal proceedings.

The Colorado Supreme Court most recently affirmed its broader Lucero holding in the case of In re Bauer, 30 P.3d 185, 188 (Colo. 2001) (noting that the Sixth Amendment right to counsel afforded to criminal defendants extends to contempt proceedings, both civil and criminal, which may result in imprisonment of the contemnor).

But, the Court of Appeals in last week's case notes (at ¶ 33) that "a fairly recent United States Supreme Court case, Turner v. Rogers, 564 U.S. 431 (2011), changed the legal landscape." 

There, the U.S. Supreme Court held in a case brought by a pro se ex-wife against her pro se and allegedly indigent ex-husband for child support seeking to enforce that with remedial contempt of court sanctions including incarceration, that “the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year)” if other procedural safeguards that it suggests are present, at least, in a case like that one where a pro se creditor is bringing the case.

The Colorado Court of Appeals held last week that, at least when the party seeking the contempt sanction is a government entity, that there is right to counsel if you are indigent (at least in the absence of alternative procedural mechanisms designed to mitigate the harm potentially caused by asymmetry of counsel, which Colorado has not chosen to adopt despite the U.S. Supreme Court's suggestion that courts do so in Turner v. Rogers). 

Indirect remedial contempt sanctions are the most common, by far, form of contempt of court proceedings in civil cases, and are used for a variety of purposes

But, one of the most common circumstances, and one of the most likely to involved an indigent defendant, is where a court determines that a child support debtor has willfully refused to pay child support despite having access to assets or self-employment income that makes it possible for the defendant to pay child support, or for otherwise not cooperating as legally required in this debt collection process by disclosing assets to the child support creditor.

The historical remedy of "body execution" (i.e. "debtor's prison") has been abolished and is unconstitutional (even in cases involving unpaid criminal fines, a clearly established legal point that the ACLU and Southern Poverty Law Center have devoted substantial resources to enforcing in low level courts across the country).

But, unlike those cases, the incarceration imposed in indirect remedial contempt of court cases involving unpaid debts (usually child support or alimony) is, in theory, at least, not simply for failing to pay a debt, but for failing to pay a court ordered debt when one has knowledge of the court order and an actual present ability to pay that debt, in the court's determination after an evidentiary hearing.

Lots of indigent debtors, however, don't really understand this distinction and also lack the sophistication to have any idea how they would go about proving their inability to pay the debt in an evidentiary hearing in a court. 

So, empirically, in many of these cases, the defendant has a legitimate defense that could prevent the child support debtor from being incarcerated but fails to prove it, in part, due to lack of legal counsel to help them prove their valid defense to incarceration for remedial contempt of court.

The case decided last week involved a child support debt assigned to the Pueblo County government's child support services offices for collection, presumably because the child received welfare benefits, and was prosecuted by a Pueblo County government attorney.

The Court makes only a narrow holding at ¶ 3, that:

We conclude that when, as here, a contempt proceeding is initiated by a governmental entity and where a jail sentence is an available remedial sanction, an alleged contemnor who is indigent has the right to court-appointed counsel. 

We further conclude that the trial court violated Broyhill’s due process rights when it refused to inquire into his indigency status to determine whether he qualified for court-appointed counsel. 

As a result, we reverse the judgment and sentence and remand the case for the trial court to determine if Broyhill is indigent and, if so, to appoint counsel to represent him at a new contempt hearing.

So, this case doesn't resolve the question of whether there is a right to court appointed counsel in indirect remedial contempt of court cases where a private party's lawyer, or a private party pro se, such as an ex-spouse, brings the proceeding, rather than a government attorney, even though the stakes in the proceeding would be the same for the party who faces remedial contempt of court sanctions. 

Federal law, under Turner v. Rogers, resolves this question only with a case by case balancing test. But Colorado could, as it did in Lucero in 1978, choose to provide greater protections than the U.S. Constitution does pursuant to the Colorado Constitution, or an interpretation of what Colorado Rule of Civil Procedure 107, which governs contempt of court proceedings in Colorado's trial courts of general jurisdiction, requires.

Interestingly, Pueblo County didn't file a brief in the appeal of the court's ruling, so the court sought supplemental briefing from institutions like sections of the Colorado Bar Association and the State of Colorado. The Colorado Bar Association, the ACLU, and a matrimonial lawyer's association all filed briefs on behalf of the appealing party facing the sanctions, and no one filed briefs in support of Pueblo County. The lack of an appeal from Pueblo County also means that this case won't go further to the Colorado Supreme Court.

The Impact Of A Judicial Finding That A Judge Is Racist

A Colorado Court of Appeals decision released yesterday sets forth the procedural next steps in a case where Colorado Supreme Court disciplined the judge who terminated their parental rights for racist conduct and the parents alleged that the judge's racism denied them a fair hearing (something that was discovered only once the appeal of their cases on other grounds was fully briefed).

The resolution was to order a limited remand for a hearing before a new judge over whether the disciplined judge's racism tainted the result in their case and should authorize a new hearing on that ground on an expedited basis. 

This is a sensible enough result, although it arguably would have been simpler and more efficient in this particular case to simply vacate the racist judge's ruling and order a new hearing on the merits before a new judge. 

Presumably, the Court of Appeals did not do so because it was sensitive to the risk that a huge swath of cases decided by the resigned racist judge would be upended despite the fact that many of the rulings probably had nothing to do with racial bias.

Still, this is a much better result than one which would have simply favored finality over the merits in the face of a judicially established case of judicial bias that plausibly applied in this particular case.

Even If You Prevail In Litigation It Is Sometimes Slow And Expensive

The Decision

A published opinion of the Colorado Court of Appeals was released today in a lawsuit that I have been part of the team litigating actively for eight and a half years (I didn't participate in the briefing of this particular appeal, and I wasn't involved in the earliest parts of the litigation.) 

The main holding of the decision pertains to what documents must be attached to an application for attorneys' fees in a case whether a statutory fee shifting provision favors your client, which will be an important precedent on a nuts and bolts issue faced by lawyers in thousands of cases a year in Colorado. 

Litigation Can Be Slow and Expensive

But, the matter of more general interest to the public is that it provides an illustration of how long it can take to get justice in the civil court system and what it costs just one side in that dispute to do so. The Court of Appeals summarized the situation at the outset:

This case arose out of a property dispute between petitioner, Rita A. Nesbitt, trustee of the Rita A. Nesbitt Trust (Nesbitt), and respondents, Kathryn Y. Scott, Rodney A. Scott, and Vicki K. Scott (collectively the Scotts). The dispute led to protracted litigation, including an action in trespass and private condemnation proceedings, that lasted nearly a decade and involved two reversals by divisions of this court. Ultimately, the trial court awarded the Scotts $400,431.85 in attorney fees and $35,066.25 in costs. Nesbitt mounts two challenges to this award of attorney fees and costs. 

The term "costs" in this context means filing fees, service of process fees, fees to have transcripts made of depositions and hearings, charges for copying, printing and mailing documents (honestly, there isn't much mailing these days although postage used to be a pretty significant item in many cases), mediator charges, and much more than everything else combined, fees paid to expert witnesses such as, in a property dispute/easement/access dispute, surveyors, real estate appraisers, and road construction cost experts. 

The other side incurred costs that may or may not have been recoverable if they had prevailed, for flying the judge and representatives for both parties in a helicopter over the mostly roadless land in Pueblo County that was the subject matter of the dispute to aid the judge in independently and personally evaluating against the filter of dueling experts testifying for each party, whether it was practicable for the land owner that sought access to do so over an alternative access route that was preferred legally.

The Court of Appeals went on to affirm the award of fees to our client in this case (the award does not include fees and costs incurred by the respective parties in the prior trespass litigation) in the amount noted. The judgment in favor of our clients (following a third appeal that affirmed the trial court's final ruling) had come earlier. (There was also a fourth appeal earlier on in the case regarding attorneys' fees that was mutually dismissed as moot along the way when a decision on the merits in favor of our clients was reversed.) The other side also incurred fees of the same order of magnitude, although, of course, not an identical amount.

So, in the end, it took a decade and many hundreds of thousands of dollars spent by the parties, in addition to a much more modest but not entirely insignificant investment of public resources (certainly well in excess of the filing fees paid) by the court system, and some time and inconvenience for third-party witnesses in the case, to get it resolved once and for all. Litigation to collect the fee award is ongoing, and it isn't impossible that the opposing party could try to appeal this favorable Colorado Court of Appeals decision on the fee award to the Colorado Supreme Court. If you consider both side's litigation costs in this case and also in the previous case that led up to it, and also the public sector and third-party witness costs at some reasonable valuation and assign some modest dollar amount per hour to the time that the parties on both sides devoted to managing this litigation, the total societal cost of resolving this property dispute was roughly one million dollars, and that costs continues to accrue.

One of the reasons that civil procedure and litigation process reforms are so attractive from a policy perspective is that solutions don't have to be that wonderful to be a significant improvement. If a proposed reform could have caused this case to be resolved the same way with five years of litigation instead of almost ten, with a combined societal cost of $500,000, instead of something on their order of twice that much, and also had similar benefits in the significant minority of long, expensive civil disputes like it, to be consistently resolved more quickly at less expense, this would be a huge policy win that doesn't seem like it should be outside the realm of possibility.

It is also worth understanding that the fee award in this case was quite moderate compared to what some large law firms in Colorado charge their client. There are firms in Denver that have charged more than this amount to their client for prevailing on a single motion to dismiss in the trial court with no evidentiary hearings, followed by an appeal to the Colorado Court of Appeals, and then another appeal from that decision in the Colorado Supreme Court.

Better funding of the court system, especially at the appellate court level, could make the process move much more quickly and could have trimmed many years off the length of this litigation, but would have only moderately reduced the cost of this litigation.

Were Either Side's Lawyers Stupid?

This also raises another issue for lawyers generally, and it isn't a simple issue of either side's lawyers being stupid or incompetent. The litigation decisions each side had to make at some key junctures of the case were not easy ones with clear answers.

The other side lost their case every early on in the trial court, in 2012, when neither side had incurred even a tiny fraction of the attorneys' fees and costs ultimately incurred. They appealed the decision, and I would be the first to agree that they had every right to do so, and in the short run, they were right, they won on that appeal. 

But, as a result, their client spent seven more years in litigation only to produce exactly the same outcome on the merits, but with a far larger attorneys' fee obligation for their client. If the money had not been spent on litigation, it could have been used to secure non-legal solutions to their underlying problem which was getting access to a parcel of land that they owned. In 20/20 hindsight, the opposing party would have been much better off giving up their legal fight at that point and accepting the trial court's initial ruling against them.

It isn't uncommon that continuing to fight in litigation after an initial setback is ultimately a bad decision, especially when you win on "technical" grounds that don't really go to the merits of your claim. But, it is very easy for even good lawyers and well intentioned clients acting in good faith to underestimate the possibility that a short term win will backfire. 

Moreover, in cases like this one, with a fee shifting statute that applies to the case, the decision making process in evaluating the possibility that a short term win will end up being more costly in the long term tends to get worse rather than better, because each side has a stronger incentive to win on the merits without regard to what is actually at stake on the merits, and this clouds their judgment and makes the right choice harder to determine.

Conversely, sometimes you get get a quick win on the merits for your client that increases the risk that a decision will be overturned by a higher court relative to a slower win (indeed, this is true of almost all quick wins in litigation that don't involve a settlement). If the quick win is later overturned by a higher court, this is usually less desirable for your client in the long run. But, it is very hard to pass up an opportunity for a quick win, because saving time (that has great value apart from the litigation cost related aspect of this) is valuable and this usually reduces litigation cost and expense. Also, appellate outcomes are hard to predict in practice, and most trial court wins are not overturned on appeal, either because they are not appealed or because they are affirmed on appeal.

Finding a way to reform civil procedure and substantive private law to discourage this kind of decision making is a non-obvious matter, which is an important reason that this system is still around after literally hundreds of years of experience with the same basic grounds rules, and many decades of experience with the most pertinent of the very specific civil procedure rules in question.

It would be possible to significantly reduce the time and expense related to collateral fee award disputes, but that is a subject for another day.

You Can Lose An Appeal Even When A Court Admits You Are Right

In People v. Butcher, a restitution award of $113,605 was entered against a defendant for securities fraud against two at risk adults. 

There was a $7,500-$15,000 error in the interest calculation on the award, which was not preserved at trial, but which the Court admits was "plain error" which is subject to review. But, the Court declined to modify the award on appeal because: "the trial court’s single obvious error — accruing post-judgment interest from the date of conviction rather than from the date of the operative restitution order — does not seriously affect the fairness, integrity, or public reputation of judicial proceedings." This was done pursuant to Colorado Rule of Criminal Procedure 52(b) and an interpretation that is a matter of first impression.

In my view ignoring an obvious error with a mathematically certain resolution which requires no new evidence to resolve, does "seriously affect the fairness, integrity, or public reputation of the judicial proceedings."

Screwing over a defendant, even when you admit that he is in the right and that you know exactly what went wrong, just because you don't feel like correcting the error, is a gross abrogation of the spirit of unbiased justice on the part of the appellate panel with no legitimate justification. It is practically the definition of bias.

The criminal defense lawyer's failure to preserve the interest objection is also very likely malpractice on the part of the lawyer, both as to the portion of the mistake that was "plain error" and as to the portion of the mistake that was not. It isn't entirely clear, however, how the statute of limitations on a malpractice claim would work in this case.

2012 Colorado Ballot Issues and Election Preview

Colorado State Ballot Issues in 2012

There are three state ballot issues this year in Colorado.

* Vote Yes on Issue S.

Issue S would amend the state constitution to modernize the state civil service system, a measure that made it onto the ballot only because it had bipartisan support and has no organized opposition. It is a carefully drafted good government measure that every voter should support. But, similar efforts have failed to pass in the past.
 
* Vote Yes on Issue 64.

Issue 64 is a carefully and thoughtfully drafted measure that would legalize recreational possession of marijuana for personal consumption at the state level in a taxed and regulated manner by people aged twenty-one and older that is parallel to Colorado's medical marijuana regime. Denver has already taken this step at the local level, and localities would retain considerable regulatory authority of the recreational marijuana industry. Due to the local control elements of Issue 64, the commerical side of the marijuana trade would likely be similar to gambling when the dust settles - it would be legal in perhaps a dozen jurisdictions and the rest would prohibit it out of NIMBY concerns and miss out on the economic benefits of deregulation.

Medical marijuana laws in Colorado which President Obama originally decided not to interfere with and has hence given the go ahead for federal law enforcement agencies to subject to incremental efforts to curb, would remain unchanged and have been a great success overall. Medical marijuana has not increased crime, has made treatments shown to work in published academic studies for certain conditions available to people who benefit from them without criminalizing them, has pushed disputes in the supply chain to the courts rather than the streets, gave the state's commercial landlords a critical boost in the middle of a real estate downturn, has generated considerable tax revenue from people who want to pay taxes and want to be regulated, and almost every single dollar spent on medical marijuana goes straight back into the Colorado economy to pay for labor reducing unemployment and strengthening the local economy. Medical marijuana has not driven up use of other drugs and even I, a strong proponent of it, don't disagree that some of the early prescriptions for it had a very thin medical basis and were basically recreational with a doctor's blessing.

There is no doubt that all of the commerce authorized by Issue 64 would be illegal under federal criminal laws and that federal law pre-empts state law in this instance. There is federal case law directly on point. The President could devote immense resources to having the federal government pick up the state and local slack in marijuana enforcement. But, few other states provide a more likeable test case for ending the drug war at least in part through decriminalization.

Marijuana is substantively less addictive and harmful to the public than alcohol and many other criminalized psychoactive drugs. Marijuana can be home grown preventing it from giving rise to large scale interstate drug trafficing rings. Colorado has a successful recent history and adminstrative skill set for regulating the industry reasonably. And, marijuana prohibition has grown publicly unpopular nationwide and in particular in Colorado. Also, the passage of Issue 64, even if the federal government chooses to enforce marijuana laws in the state leaves the specter of jury nullification as a likely possiblity in every single marijuana prosecution and a few jury nullification acquittals could quickly dampen federal interest in taking a crackdown approach.

Even if all that happens under Issue 64 is that Colorado successfully shifted the budgetary burden of enforcing marijuana prohibition from state and local government to the federal government, this is a win for Colorado taxpayers.

* Vote No on Issue 65.  But, what the voter's decide doesn't really matter.

Issue 65 urges state and federal legislators to pass a U.S. constitutional amendment legalizing campaign finance contribution dollar limitations, something the the Citizens United case, prior cases, and one follow up case, decided by the U.S. Supreme Court under the First Amendment to the U.S. Constitution severely limit.

This measure is mostly irrelevant. It is a preference polls or suggestion that has no binding legal effect. Unlike many ill conceived proposals that Colorado Common Cause has helped to draft, it doesn't have the minutae of details that leave room for mischief. Most people agree with the concept of campaign finance limitations, although the U.S. Supreme Court hasn't been wrong in concluding that there are grave threats to constitutionally important issues of political free speech that are implicated by campaign finance limitations. Drafting a suitably narrow constitutional amendment that has real effect while not closing the door to vigorous democratic debate when ill intentioned politicians implement is a difficult and perhaps insoluable problem.

I personally think that campaign finance contribution limitations are a fundamentally flawed approach to addressing the problems of excessive influence by economically powerful individuals and institutions. Laws requiring transparency in campaign financing, moderate levels of public funding for election campaigns, and improved election laws are much better solutions that are far less prone to being hijacked or gamed. But, because this measure is merely a suggestion and lacks the poor drafting endemic to campaign finance measures, my opposition to Issue 65 is more tepid than almost any other campaign finance reform proposal that I have seen.

In a best case scenario, if Colorado and other states start to pass the measures, the constitutional amendment Colorado's state and federal legislators are urged to adopt never passes, but the U.S. Supreme Court crafts a judicial loophole to its First Amendment case law that provides a workable option for addressing the campaign contribution excesses almost akin to bribery that has undermined the faith that so many people do have in the political system.

Major Federal Partisan Race Redux

* Vote For Democrats in All Federal Elections

Polling suggests that every bit of campaigning effort in Colorado will matter this year. It is almost impossible for Romney to assemble the necessary 270 electoral votes without taking Colorado, and Colorado is a true swing state this year in which neither candidate has a lead so strong that it can shift hands in a matter of days. Romney needs to win essentially every toss up state and some Democratic leaning states to win the Presidency or tied up the race to throw it to the House of Representative to resolve.

Close Congressional races in the 3rd (Southern and Western Colorado), 6th (South and East suburban Denver and Aurora more or less), and 7th (North and West surburban Denver) all have the potential to go either way and influence which party has a majority in the U.S. House of Representative and by how much. This is the first election cycle after redistricting for these seats, so there is considerable uncertainty regarding how the incumbents will fare in new and less favorable districts (in the 3rd and 6th with Republicans hold) and in a new and somewhat more favorable district in the 7th (which Democrats hold). Odds makers favor the incumbents in all three of these races, but not heavily.

Colorado State Legislative Race Redux

* Vote For Democrats In All State Legislative Elections

Republicans currently hold a one seat majority in the sixty-five member Colorado State House, in which all seats are contested every two years. Since this is the first election cycle after redistricting and the quality of data and analysis at this level is much patchier than at the Congressional district level, more uncertainty is lurking.

Democrats have a more firm hold of the Colorado State Senate going into the election, only half of incumbent state sentators face voters this year, so the election is far less likely to change control of the state senate.

In both cases, the state legislative redistricting maps are widely viewed as favoring Democrats and Democrats are helped by the increased voter turnout in Presidential elections, so the advantage should be with Democrats in state legislative races this year.

Colorado Local Ballot Issues and Local Candidate Races

There are a number of notable local ballot issues and candidate races this year.  Many seek voter authorization for new spending and debt authority for local governments, which TABOR (the taxpayer's bill of rights) obligates governments to obtain before the taxes are levied and the debt is incurred.  Most of the time, I concur with the elected officials proposing these measures that the revenue or debt is needed.  Most voters most of the time agree with me on this point.

A number of District Attorney districts have contested DA races this year, the most interesting of which is the contested seat to fill the seat left open by controversial 18th Judicial District Attorney Carol Chambers who is term limited, where the Republican Sheriff of Araphahoe County and a recent former Republican District Attorney have endorsed the Democratic Party candidate in the race.

There are also a variety of other notable ballot issues and candidate races.

These will be discussed in a future post coming soon.

Colorado Judicial Retention Elections

In Colorado, almost all judges are nominated by blue ribbon committees, appointed by the Governor, and then subject to "retention elections" after two years in office and then after a longer period of time based on the particular judgeship in question.  One Colorado Supreme Court Justice (Justice Coats) and a number of Colorado Court of Appeals judges face retention elections this year statewide.  There are also a host of retention elections for the state's general jurisdiction court judges (District Judges), some speciality court judges in Denver, and many limited jurisdiction court judges (County Court Judges).

If a majority of voters casting ballots on retention cast no votes, the judge is not retained, and a vacancy is created for the Governor to fill (there is some slight variation in the pattern in Denver).

A state commission interviews every judge facing a retention election and surveys lawyers, court officials and non-lawyer litigants regarding the judges facing retention elections and reports the results and makes a recommendation.  In all but the most egregious cases, the recommendation is to retain the judge and usually the recommendation is unanimous.  The results are distributed in a pamphlet sent to every voter who votes on the judge in question.  These recommendations generally say almost nothing about the ideology of the candidate except to sometime disclose a perception of a prosecution or defense bias in criminal cases.

Often informal pressure from the commission or decisions not to seek retention or to retire from the judicial ethics body in the state keeps judges who would not receive retention recommendations from facing voter's wrath.  The appointment process also keeps most of the most volatile and unqualified candidates for judicial office who might be elected by voters or appointed by a purely political process in other states from ending up on the bench in the first place.

Judges can also be removed by impeachment in Colorado, but this almost never happens.  It is far more rare even than losing a retention election.

Most non-retention votes are driven by a personal controversy the judge is embroiled in with ethical dimensions, or by a controversial and unpopular decision in a very small number of high profile cases that the judge was involved in (even if the decisions were legally correct), rather than an overall pattern of subpar performance.

I am not a personal fan of the judicial retention election part of Colorado's judicial personnel process, even though I have nothing but praise for the manner in which it appoints its judges and have a guarded but positive view of the judicial discipline process. 

I would favor a process that is more selective in deciding which judges should face retention contests and one with more informed decision makers.  For example, I would prefer a system in which the Colorado Supreme Court, which is most informed about the matter, rather than the general public, made retention decisions regarding Colorado Court of Appeals judges.  Similarly, I would favor a system in which Colorado Court of Appeal judges made retention decisions for District Court judges, and in which District Court judges made retention decisions for County Court judges in their district.  I would leave voters with a say only over Colorado Supreme Court judges and over judges facing retention elections specifically flagged either by recall petitions with thresholds similar to those for DA or statewide or county official as the case might be, or by some threshold of performance set by the judicial retention commission for voter review (perhaps anything other than a unanimous vote to retain).  Thus, rather than having dozens of judicial retention elections on the ballot each year about which few voters know anything, there would be just a handful of the most salient  races statewide every year.

But, while these elections clutter the ballot and rely on usually ill informed opinions, the overall judicial appointment and removal process in Colorado is still one of the best in the nation overall.

In general, my attitude is to set higher standard for judicial retention than the state commission that makes retention election recommendations, and to vote no on retaining a judge whenever there are any signs in the judicial commission report that a significant minority of any class of people do not favor a judge's retention or there are any other material shortcomings in the judge's performance.  I also vote not to retain judges whom I have personal knowledge of any case in which the judge's performance has been questionable.  And, when as this year, I have a Governor I trust to make new appointments wisely, I vote not to retain judges who may be exemplary in the non-partisan components of their jobs but whose judicial ideology I am familiar with and disagree with on the merits. (See also this 2010-2011 summary of Colorado Supreme Court Justice ideologies.)

It is for the last reason that I will be voting not to retain Colorado Supreme Court Justice Coats.  His is by all accounts an ethical and diligent judge.  Unlike Wisconsin where they have had physical brawls in the Court chambers, every member of the Colorado Supreme Court conducts himself or herself in a civilized and professional manner.  Justice Coates also never fails to articulate a basis for his rulings in opinions that are at least par for the course for an appellate judge.  But, I disagree with his judicial ideology and approach to legal interpretation.

The most common split in Colorado Supreme Court is a five to two split with five "moderate liberals" in the majority, and two "conservatives" in the minority (there are plenty of cases that are decided unanimously and all manner of other voting alignments turn up now and then, the divide is not universal or monolithic).  I read a great many Colorado Supreme Court decisions.  With only very rare exceptions, I usually feel that the five judge faction's substantive judicial determination is a better intepretation of the law on the merits than the two judge minority faction.  The judges in that two judge "conservative" faction are Justice Eid and Justice Coats.  Between the two, Justice Eid is a bit sharper in her legal analysis and writing (on the writing score she is the rivial of any U.S. Supreme Court justice in recent memory) but ideologically in about the same place as Justice Coates. 

Both of these Justices, in my opinion, are somewhere to the ideological right U.S. Supreme Court Justices Kennedy and former U.S. Supreme Court Justice O'Connor, and somewhere a bit to the ideological left of U.S. Supreme Court Justices Thomas, Scalia and Alito.  These two judges are probably the closest match ideologically to Chief Justice of the United States Wiliam Rehnquist.

In my view, it is legitimate to make a judical retention election decision based on on judicial ideology and mode of legal interpretation, even though the commission that makes retention election decisions doesn't consider this factor and even though that commission has unanimously recommended that he be retained and did not receive exceptionally high level of dissent in the surveys regarding his performance.  Indeed, the real reason to have judicial retention elections, in my view, is to allow the public to weigh in on issues of judicial ideology.

It is much harder to weigh Colorado Court of Appeal judges because they write so many opinions, because they set on many varied panels that make their rulings harder to analyze, and because there are so many more of them.  Nothing in the judicial retention commission report suggests that any of them should not be retained, all were unanimously recommended for retention, and at least one of them, Judge Casebolt, I have a personally high opinion of him (I notice his opinions because he was formerly an attorney at a firm were I worked a long time ago).

I may address judicial retention elections for notable trial judges and for other members of the Colorado Court of Appeals, in a future post.
 
Colorado Voter Registration Redux

In early September, Republicans had a 72,585 voter edge in that category - or 4.6 percent. One month later, that edge has shrunk to 30,347 voters - 1.6 percent overall. 

From Fox 31 via Colorado Pols.

The Republican voter edge going into the election is really greater than raw voter registration numbers would suggest, because Republicans vote more reliably than Democrats.  Democratic voter registration gains are a combination of hard work registering voters and the fact that there are more unregistered voters to register.  Overall, there are about 3.6 million registered voters in Colorado.

Despite their voter registration edge, the difficulty that Republicans face going into the election is that independents have in recent years in Colorado, more often ultimately voted for Democrats than for Republicans.

Colorado Election Administration

Ballots will begin to be mailed to non-military voters this Monday, October 15 (at least where I live), and votes will begin to be cast the next day, three weeks before the November 6, 2012 election day. This greatly limits the impact of any "October surprise" on election outcomes in Colorado, but the most fickle voters also tend to be procrastinators, so there is still considerable room for last minute factors to influence voting outcomes.

Republican Secretary of State Scott Gessler has been severely criticized for his handling of a variety of election administration issues and of his own financial and ethical dealings with the Colorado Department of State by the state county clerk's assocation (whose executive director is a former Republican Clerk and Secretary of State), and the press, and rightly so.  Most recently, as many as thousands of voters seeking to register to vote may have been denied that opportunity on the October 9, 2012 registration deadline for this year's Presidential election due to entirely foreseeable computer hiccups in his office's voter registration system.

So far as I know, a high profile fight over mailing ballots to inactive voters (a term far to rigorously defined under Colorado election law) remains in play in the courts, just days from the date for mailing ballots.

Gessler's highly hyped claim that there were as many as 11,000 non-citizens on Colorado's voter rolls in the end revealed less than 200 possible non-citizens on the rolls many of whom may be exonorated in uncoming hearings, while harassing thousands of legistimate voters.  Only 35 people over the court of five elections, no more than eight in any one county, were found to have been possible non-citizen voters and these cases again, are instances where hearings have not been held and government paperwork errors could be at fault.  Republican misconduct in the voter registration process in the 2012 election has produced more fraud and that is being prosecuted.

LWOP Sentence For Zapata Murder Upheld On Appeal

The Colorado Court of Appeals has upheld the convictions of a man charged with first-degree murder and other counts in what prosecutors said was the bias-motivated killing of a transgender Greeley woman.

Allen Andrade of Thornton was convicted in 2009 of deliberately beating 18-year-old Angie Zapata to death with a fire extinguisher in 2008 after learning she was biologically male. Defense attorneys argued Andrade had planned to meet Zapata for sex and snapped after learning she was born male.

From here.

Adrande was sentenced to life in prison without possibility of parole. His main appellate arguments, an argument that the jury should have been giving an instruction mitigating his criminal culpability because he was drunk, and seeking to suppress the murder weapon from evidence, were mundane. My post from the day that he was convicted on April 22, 2009, is found here.

Given the fact that Adrande had at least three prior felony convictions in his fourteen years of adult life, and was charged as a habitual offender and was taped making a telelphone call from jail admitting to the killing (albeit arguably with a lower level of intent), made a confession to police (albeit arguably with a lower level of intent), and was arrested in possession of Zapata's stolen car, 32 year old Adrande would have gone to prison for 40 years to life, and also faced the 24 year sentences on other charges that he received, even if the appellate court had reversed the first degree murder conviction. He was convicted of a hate crimes charge, but given his first degree murder and other convictions, any appellate issues he could have raised related to that conviction wouldn't have mattered because they would have constituted harmless error at their worst.

The August 11, 2011 opinion of the Colorado Court of Appeals in case 09CA1310 People v. Allen Ray Andrade, was unpublished. It appears that the case was argued on the basis of the briefs with no oral argument in the case available in the Colorado Court of Appeals online archive of oral arguments.

Andrade could make a discretionary appeal to the Colorado Supreme Court, could make a state level collateral attack on his conviction after that, and could bring a federal habeas corpus petition after that according to strict procedural limitations. But, given the lack of a death sentence, the lack of a right to counsel for collateral attacks, the lack of a credible claim that he was not the one who killed Zapata, his long criminal history, and the weakness of his arguments on direct appeal and the weight of the multiple damning pieces of evidence against him, none of those efforts are likely to be successful. There is a good chance that he won't even bother with further appeals, although he does have nothing else to do for the rest of his life. And, Adrande is extremely unlikely, given the fact that he was not sentenced to death, has a long and serious criminal record, and there is no doubt that he was guilty of some serious crimes this time around, that he will ever receive executive clemency.

American Criminal Justice: Cheap, Final, Harsh and Fast

In practice, it is astoundingly unlikely anywhere in the United States, in the state or the federal system, that someone who is convicted of a crime and not sentenced to death, whose conviction is affirmed on direct appeal, will not have that conviction later overturned or will have that sentence commuted.

I'll also restate a note that I made in a previous post:

The speed with which very serious criminal cases like this one progress is notable. The murder took place on July 15, 2008, and was discovered two days later. Thirteen days after the murder was discovered, there was an arrest. Pre-trial dismissal for lack of evidence was ruled out less than two months after the discovery of the body.

The trial was completed, the jury convicted, and the sentence imposed on April 22, 2009, nine months and one week after the murder was committed, and less than nine months after he was arrested. The direct appeal of right was resolved yesterday, fifteen months and twenty days after he was convicted, and thee years and twenty-seven days after the murder was committed. For all intents and purposes, the criminal justice system is now done with this case and he is the Colorado Department of Corrections' problem until he dies.

The sentence is rarely this long, but the general timeline in this case isn't unusual for a serious violent felony. Not every criminal case is so swift, but a very large share of all criminal convictions do result from arrests very shortly after the crime is committed and are based on convictions after trials where the evidence is overwhelming or guilty pleas, which move cases even faster. The constitutional right to a speedy trial rarely makes headlines, and isn't something most people are even aware of, but it has a pervasive effect on the pace of criminal proceedings in the United States.

Also, while the exact number will probably never be determined, the marginal cost of this criminal justice system of investigating and litigating this case to trial was almost nil, as most of the people involved, the police, DA who prosecuted the case, the judge and court clerks who handled the case, and the defense lawyers in the case, are on the public payroll on a salaried basis, and even if the personnel costs for everyone involved was prorated on an hourly basis, this case probably cost less to investigate and litigate through an appeal than a typical serious automobile accident that results in some injuries but not a death or a six figure contract dispute. All of the investigation and litigation costs combined for all parties were probably less than the costs associated with nine months of pre-conviction incarceration.

Of course, incarcerating this murderer for the rest of his life will cost the people of the State of Colorado something on the order of a million and a half dollars in today's funds after adjusting for inflation, and the State of Colorado probably spent hundreds of thousands of dollars incarcerating him before his most recent conviction on prior felonies and no doubt, for juvenile offenses as well.

If the death penalty had been sought and secured, it probably would have cost the State of Colorado more in additional litigation costs and death penalty implementation than it would save in incarceration costs from his premature death, or at least wouldn't have saved very much. It is also worth recalling that death sentences are overturned much more often than murder convictions. For example, the results in all the cases that produced post-conviction reversals of death sentences that were finally resolved between April 1973 and 2000, 54 cases were retried and produced a death sentence on retrial, 223 led to a murder conviction with a sentence other than the death penalty, and 22 cases ended with a determination that the defendant was not guilty of a capital crime. Thus, more than twelve out of thirteen death penalty sentence reversals ultimately kept a capital murder conviction in place, and some of the one in thirteen cases where a capital murder conviction was itself reserved still left some serious felony conviction in place rather than leading to a finding of outright innocence of any crime (the cases where there is a chance of innocence on all counts due to factors like mistaken identity or police frameups are the ones groups like the Innocence Project prioritize).

Deprived of any hope of release, little meaningful activity to carry out in prison, convicted of a sex related crime, and marked with a long track record of violent offenses, one can expect that Andrade will start his prison career at a very high security level and stay there, and that he will not be a model inmate.

One would like to think that people serving long prison sentences provide some benefit to society while they are there apart from staying out of the lives of law abiding citizens while they are incarcerated, although our system of criminal justice certainly doesn't make that a priority and is perfectly happen to simply waste and right off any contribution that incarcerated people could make for the most part.

For all the twists and turns of the criminal justice system that make headlines and feature in crime fiction, reality is that the vast majority of criminal prosecutions produce convictions for something, that a minority of cases go to trial and a minority of those cases that are appealed are reversed on direct appeal, that it is fairly unusual for even a criminal sentence to be reversed on appeal, and that executive clemency is almost non-existent. Also, the percentage of people who escape from incarceration in a state prison is infinitessimal, and is even smaller in the case of prisoners in the highest security environments who have committed serious violent crimes (a large share of all escapes are walk aways from community corrections facilities, work release programs or minimal security facilities housing the least serious offenders). And, convicting someone of escape once they are rearrested, given the availability of prison records, DNA evidence, fingerprints, photographs and so on, is little more than a formality.

By the time the police make an arrest and a prosecutor files charges the probable future is usually very clear, and the vast majority of the time that there is a conviction it sticks. And, it is done very cheaply.

Pretty much the only way to have a reasonable chance of escaping some punishment for a crime is to not get arrested in the first place, and of course, that usually is what happens.

Why point all of this, which is obvious to those familiar with the system except politicians, for the most part?

First, there has been a lot of criticism that the Warren revolution in constitutional criminal procedure has made it easy to escape punishment from the criminal justice system. The reality is that there isn't much merit to that assertion. People who are arrested for serious crimes are usually convicted of something and usually get long prison terms if they have criminal records and committed really serious crimes, indeed, longer terms than anywhere else in the world pretty much.

Second, there has been a strong conservative movement to cast doubt on the capacity of the criminal justice system to handle terrorism suspects. But, there is extremely little evidence to suggest that it is not an effective way to punish them and there is considerable evidence to show that the due process protections and fairness of the criminal justice system, relative to more draconian approaches proposed to deal with terrorism, is better at preventing incapacitation of one terrorist from causing future terrorist acts inspired by action taken against the first terrorist. The claimed need for deprivations of civil liberties is premised on the incapacity of the civilian criminal courts to secure convictions and impose long sentences for terrorist acts which is simply not supported by experience in these cases.