Colorado's State Bivens Law

Colorado's General Assembly has enacted a state law authorizing suits for money damages against federal, state, and local officials violating federal constitutional rights in connection with civil immigration enforcement, because the U.S. Supreme Court has declined to extend Bivens (a U.S. Supreme Court case which created a federal common law remedy in the form of a private civil action for damages for certain violations of federal constitutional rights by federal officials) to do so. The bill has not yet been signed by the Governor, but he has not publicly threatened to veto the bill either.

Ideally, it wouldn't have been limited to civil immigration enforcement, which may be the provision of the law which makes it most vulnerable to being held unconstitutional, as immigration law is a purely federal function, but it isn't at all clear that narrowing this law beyond its maximum constitutional scope invalidates it, and there is quite a bit of law (outlined in Section 1 of the bill) which supports the conclusion that this mostly unused check on misconduct by federal official is constitutional.

The limitation of the law to civil immigration enforcement, however, does limit room to complain that the waiver of various immunities would do serious mischief to the ordinary actions of law enforcement in the state at the state and local level.

The bill's full and final text is below:

Senate Bill 26-05:

Be it enacted by the General Assembly of the State of Colorado: 

SECTION 1.  Legislative declaration. 

(1)  The general assembly finds and declares that: 

(a)  Since the earliest days of the nation, the United States supreme court has held, in cases such as Little v. Barreme, 6 U.S. 170 (1804), and Murray v. The Charming Betsey, 6 U.S. 64 (1804), that federal officials may be liable in damages for violations of federal laws; 

(b)  In later 19th century cases as well, the United States supreme court held that federal officials could be liable for damages even for reasons relating to but beyond the lawful scope of federal duties, Mitchell v. Harmony, 54 U.S. 115 (1851), and in particular that state courts possessed jurisdiction to consider such damages claims, Teal v. Felton, 53 U.S. 284 (1852); 

(c)  The United States supreme court has long held that federal employees are not inherently beyond the reach of state laws simply because they are federal employees. For example, in Johnson v. Maryland, 254 U.S. 51 (1920), the court noted, "[A]n employee of the United States does not secure a general immunity from state law while acting in the course of his employment", and in Colorado v. Symes, 286 U.S. 510 (1932), the court stated, "Federal officers and employees are not, merely because they are such, granted immunity from prosecution in state courts for crimes against state law". 

(d)  Decades later, the United States supreme court continued to recognize the role of state law in holding federal officials accountable for legal violations, noting in Wheeldin v. Wheeler, 373 U.S. 647 (1963), "[w]hen it comes to suits for damages for abuse of power, federal officials are usually governed by local law"; 

(e)  When the United States supreme court recognized a federal law cause of action for violation of certain constitutional rights in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), that cause of action was in addition to, rather than instead of, traditional state law remedies. Even one of the dissenting justices in Bivens noted the ongoing role of state courts, writing, "The task of evaluating the pros and cons of creating judicial remedies for particular wrongs is a matter for Congress and the legislatures of the States". 

(f)  More recently, congress has made federal statutory law the exclusive remedy for certain claims sounding in tort, but this exclusivity specifically "does not extend or apply to a civil action against an employee of the Government [. . .] which is brought for a violation of the Constitution of the United States", 28 U.S.C. sec. 2679. The prime sponsor of legislation amending the federal "Tort Claims Act" to provide for limited exclusivity took pains to clarify, "We make special provisions here to make clear that the more controversial issue of constitutional torts is not covered by this bill. If you are accused of having violated someone's constitutional rights, this bill does not affect it", 134 Cong. Rec. 15963 (1988). 

(g)  In 2022, in declining to extend the scope of the Bivens action in Egbert v. Boule, 596 U.S. 482 (2022), the United States supreme court observed that legislatures, not courts, are the better branches of government to fashion damages remedies; 

(h)  In its most recently completed term, the United States supreme court declined, in Martin v. United States, 145 S. Ct. 1689 (2025), to extend the doctrine of supremacy clause immunity beyond its traditional criminal law context; 

(i)  Violating the federal constitutional rights of residents of the United States has never been and can never be "necessary and proper" to the execution of the laws and powers of the United States within the meaning of article I, section 8, clause 18 of the United States constitution; and 

(j)  In enacting this act, the Colorado general assembly affirms its longstanding and rightful role as a sovereign state in providing forum in its courts for adjudication of claims of federal constitutional violations. 

SECTION 2.  In Colorado Revised Statutes add 13-20-1302 as follows: 

13-20-1302.  Civil action for violation of constitutional rights during immigration enforcement - relief - attorney fees - time limit to commence action - definition. 

(1)  A PERSON WHO HAS THEIR RIGHTS THAT ARE GUARANTEED BY THE UNITED STATES CONSTITUTION VIOLATED BY ANOTHER PERSON WHO, ACTING UNDER COLOR OF ANY FEDERAL, STATE, OR LOCAL LAW, IS PARTICIPATING IN CIVIL IMMIGRATION ENFORCEMENT, MAY BRING A CIVIL ACTION AGAINST ANOTHER PERSON WHOSE CONDUCT WAS THE PROXIMATE CAUSE OF THE VIOLATION. A PERSON FOUND TO HAVE VIOLATED THE UNITED STATES CONSTITUTION WHILE PARTICIPATING IN CIVIL  IMMIGRATION ENFORCEMENT IS LIABLE TO THE PERSON WHOSE RIGHTS ARE VIOLATED FOR LEGAL OR EQUITABLE RELIEF OR ANY OTHER APPROPRIATE RELIEF. 

(2) (a)  IN AN ACTION BROUGHT PURSUANT TO THIS SECTION, A COURT SHALL AWARD REASONABLE ATTORNEY FEES AND COSTS TO A PREVAILING PLAINTIFF. IN ACTIONS FOR INJUNCTIVE RELIEF, A COURT SHALL DEEM A PLAINTIFF TO HAVE PREVAILED IF THE PLAINTIFF'S SUIT WAS A SUBSTANTIAL FACTOR OR SIGNIFICANT CATALYST IN OBTAINING THE RESULTS SOUGHT BY THE LITIGATION. 

(b)  WHEN A JUDGMENT IS ENTERED IN FAVOR OF A DEFENDANT, THE COURT MAY AWARD REASONABLE COSTS AND ATTORNEY FEES TO THE DEFENDANT FOR DEFENDING ANY CLAIMS THE COURT FINDS FRIVOLOUS. 

(3)  TO THE MAXIMUM EXTENT PERMISSIBLE UNDER THE UNITED STATES CONSTITUTION AND 42 U.S.C. SEC. 1983, A GRANT OF IMMUNITY TO A DEFENDANT, INCLUDING, BUT NOT LIMITED TO, SOVEREIGN IMMUNITY; OFFICIAL IMMUNITY; INTERGOVERNMENTAL IMMUNITY; QUALIFIED IMMUNITY; SUPREMACY CLAUSE IMMUNITY; STATUTORY IMMUNITY, INCLUDING THE "COLORADO GOVERNMENTAL IMMUNITY ACT", ARTICLE 10 OF TITLE 24; OR COMMON LAW IMMUNITY, DOES NOT APPLY IN AN ACTION BROUGHT PURSUANT TO THIS SECTION. 

(4)  AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES, "CIVIL IMMIGRATION ENFORCEMENT" MEANS AN ACTION TO INVESTIGATE, QUESTION, DETAIN, TRANSFER, OR ARREST A PERSON FOR THE PURPOSE OF ENFORCING FEDERAL CIVIL IMMIGRATION LAW. "CIVIL IMMIGRATION ENFORCEMENT" DOES NOT INCLUDE AN ACTION COMMITTED BY A PEACE OFFICER WHO IS ACTING WITHIN THE SCOPE OF THE PEACE OFFICER'S DUTIES CONSISTENT WITH STATE LAW. 

(5)  PURSUANT TO SECTION 13-80-102, A CIVIL ACTION DESCRIBED IN THIS SECTION MUST BE COMMENCED WITHIN TWO YEARS AFTER THE CAUSE OF ACTION ACCRUES. 

SECTION 3.  In Colorado Revised Statutes, 13-80-102, amend (1)(k); and add (1)(l) as follows: 13-80-102.  General limitation of actions - two years.  The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, must be commenced within two years after the cause of action accrues, and not thereafter: 

(k)  All actions brought under AND PURSUANT TO section 13-21-109(2) [ed. the bad check statute]; 

(l)  AN ACTION ALLEGING A VIOLATION OF CONSTITUTIONAL RIGHTS DURING CIVIL IMMIGRATION ENFORCEMENT BROUGHT PURSUANT TO SECTION 13-20-1302. 

SECTION 4.  Severability. If any provision of this act or the application of this act to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable. 

SECTION 5.  Appropriation. (1)  For the 2026-27 state fiscal year, $125,604 is appropriated to the department of law. This appropriation is from the legal services cash fund created in section 24-31-108 (4), C.R.S., from revenue received from the department of personnel that is continuously appropriated to the department of personnel from the risk management fund created in section 24-30-1510 (1)(a), C.R.S. The appropriation to the department of law is based on an assumption that the department of law will require an additional 0.5 FTE. To implement this act, the department of law may use this appropriation to provide legal services for the department of personnel.

SECTION 6. Safety clause. The general assembly finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, or safety or for appropriations for the support and maintenance of the departments of the state and state institutions.

Selected Lesser Grievances

There are lots of big issues facing the United States, the biggest of which is the existential threat to its continued functioning as a democracy posed by Donald Trump's candidacy in this year's Presidential election. And, this blog spends plenty of time thinking about those big issues.

But, the world is also full of things that aren't "big issues" but are minor annoyances and lesser grievances that it would be nice to see remedied, even if they aren't really make or break issues. This post recounts some of them.

Computer System Treatment Of Hyphenated Names And Similar Issues

* There ought to be a law that mandates that government and big business computer systems accommodate people who have hyphens, apostrophes, spaces, and just one or two characters in their names. This may have been an issue at the start of the computer age, but we have reached a point where it is no longer that hard to do.

Fraud

* We do a poor job of dealing with fraud perpetrated by phone, text message, email, social media, the Internet more generally, and the financial system. It should be possible to click a 9-1-1 style universal fraud reporting code and send reports of fraudulent activity instantly to the appropriate law enforcement agency and telecommunications providers, with no further effort from the person reporting it required. This should shut down the fraudster's phone number, and email accounts, social media accounts, and freeze any associated financial accounts almost instantly, and launch investigations as a matter of course into the perpetrators and into the institutions used by them to perpetrate the frauds. The cost of an individual fraudulent communication is small and the fraudsters count on that to shield them from investigations, which when they do happen aren't nimble enough to address it because the perpetrators are long gone. Yet, we have a system that is much better a dealing with the much less serious problem of copyright infringement than it is at dealing with fraud. 

* We should do a better job of dealing with deceptive business practices by credit reporting agencies that try to trick you into paying for services that they are required to provide for free.

* We should do a better job at shutting down businesses that dupe people into paying to get government services that are available cheaper or for free from the actual government.

* Credit cards should have PIN numbers the way that ATM cards do. This would dramatically reduce credit card fraud and reduce the incentive to steal credit cards.

* Food labeling should be more tightly regulated to discourage spurious and misleading health claims like "antibiotic free" in foods where antibiotics aren't allowed anyway, or claims that a food that ordinarily would have sugar but not fat anyway is "fat free".

Regulated Occupations

* We should have a central database of people who are sanctioned or "disbarred" from particular professions in a particular state or local jurisdictions, so that these people are prevented from going to some other state or local jurisdiction, or some other licensed occupation where the same conduct would also be disqualifying.

* The construction trades should be regulated at the state level, not the local level. This prevents an unreasonable barrier to entry for legitimate reputable construction contractors, which causes construction trade licensing to be ignored or overlooked, while also making it too easy for someone who has had their construction trade license rightfully revoked to just go to another locality that hasn't caught up with them yet.

Arrest Records

* We should also have a way of purging the official arrest records of people who are arrested or charged, but are ultimately not convicted of anything, from public records and databases (that do not at least disclose the exoneration with the arrest record report). Similarly, there should be a better process to purge or annotate criminal convictions that are vacated.

Mail, Package Delivery, And Porch Piracy

* The U.S. Postal System and all other package delivery firms should be liable for damages when it delivers a package to the wrong address (or doesn't deliver it at all), preventing the intended recipient from receiving it, even without requiring the sender to procure insurance, at least up to a certain dollar amount. 

* A parallel and similar system for dealing with fraud via mail to the one suggested above for telecommunications fraud should also be put in place. Violators (both firms and their managers and principals) should have their right to send mass mailings suspended for some period of time in addition to any other relief.

* A certain percentage of packages should have tracking chips that can be used to locate the packages if they are taken by porch pirates, allowing the perpetrators to be found, and creating too high of a risk for people contemplating porch piracy to consider doing so.

* Mutual funds should be required to make information about their funds publicly available, but mailing prospectus-like disclosure documents to their investors on a regular basis just kills trees without providing meaningful improvements in investor knowledge.

* The same is true of privacy policies. Require them to be made available in some standardized place, but don't mail them out to everyone connected to a business.

* Low advertiser postal rates for "junk mail" that don't reflect reduced costs for the postal system due to, e.g., pre-sorting, should be abolished and instead, all mail should have to pay first class mail rates. If it isn't worth sending a first class mail rates, it isn't worth bothering people with the unsolicited junk mail.

* Congressional franking privileges should be abolished and replaced with a budget for postage for each U.S. House and U.S. Senate office, based upon the population of the state in question for U.S. Senate offices. This privilege is widely abused by office holders and undermines the economic viability of the U.S. Postal Service.

* Mail-In Ballots should have business return postage type treatment so that the voters doesn't have to attack any postage to return their ballot through the mail, paid for by the governmental body conducting the election.

* Registered voters should indicate (in a database that is not public record at an individual level, just at a statistical level), their preferred language for election related information and communications. Thus, election related disclosures and ballots would go to voters only in their preferred language rather than in both English and Spanish with other language versions available upon request. This would make ballots more readable, and cut in half the amount of paper wasted in pre-election disclosures. It would also significantly reduce the burden on voters who need to receive translations into languages other than English or Spanish.

Long Ballots 

Ballots are too long, in part, because we have voters do too much. But long ballots discourage voting generally and lead to uninformed decision making.

* We should not elect, at any level coroners, surveyors, engineers, dog catchers, assessors, treasurers, clerks, or secretaries of state, who are supposed to be carrying out technocratic tasks with only limited discretion.

* Elections should not be administered by partisan elected officials, or by partisan political appointees.

* Judicial retention elections like the ones held in Colorado make ballots much longer (just short of half the questions on my ballot this year are judicial retention elections) and demand a great deal of effort from voters who try to make those decisions in an informed manner, but provide very little benefit. Typically only one or two judges in the entire state are not retained in any election cycle, and sometimes, none are. Only about 1% of judges are ever removed this way, which inadequate purges inadequate judges. And, a significant share of judges who are removed are removed for decisions that are legally required but unpopular. Simply put, the general voting public is ill-equipped to make this decision even with state supplied information pamphlets, and it is a great burden on voters that makes ballots too long. There might be a place for retention elections, but only in cases which are singled out as "high risk" in some reasonable manner, for the voting public to focus upon.

* In Colorado, the Taxpayer's Bill Of Rights, requires voters to approve tax increases and to authorize retention of revenues from existing taxes if those revenues grow fasters than a formula in the state constitution. I don't have a problem with the first kind of voting requirement for new taxes. But, votes on retention of revenues from existing taxes (called "debrucing" ballot issues, after Doug Bruce, the author of TABOR in Colorado) should not be required and make our ballots unnecessarily long.

* Similarly, while voters should have to authorize increased debt limits for local governments, they should not have to authorize incurring debt at levels previously authorized by voters and paid for with existing taxes, after the original debt is paid down, at least in part.

* The CU Board of Regents and the state school board, should not be chosen by the general public in elections, let alone, in partisan elections.

* Perhaps in addition to petitions to establish a minimum threshold of support for a ballot measure before putting it on the ballot for the general public to consider, citizen's initiatives should face a public opinion poll test and only be granted ballot access if it can garner at least, say, 35% support, in a public opinion poll conducted by a reputable and certified firm.

Notarization

* The requirement that statements made under penalty of perjury be presented in a notarized affidavit made under oath should be replaced with a rule allowing unnotarized declarations made under penalty of perjury in court documents, something that is already the case in the federal court system, and the court systems of Colorado and Utah, at least.

* Notarized but not otherwise witnessed wills are valid in Colorado. This should be the norm nationally.

Copyrights, Rights Of Publicity, And Privacy

Copyright laws are too strong for a digital age. Some examples:

* There should be more legally binding safe harbors for fair use. Far too many cases are in gray areas decided on a case by case basis by a particular judge and jury.

* Some version of a fair use defense or dramatic remedy limitation should be available in the cases where someone is sharing content made available by a copyright holder or a licensee for free on the Internet or via freely available broadcast television or radio.

* There should be a mechanism for mandatory licensing of orphan works and for translations of works that are not available in a particular language.

* There are overly expansive protections for derivative works in areas such a fan fiction that should be dialed back.

* Statutory damages in lieu of actual economic damages, and the availability of attorneys' fees in actions for copyright infringement, should also be greatly curtailed. In general, copyright remedies and rights should be closer to an unjust enrichment tort remedy and less like a property right. 

* Rights of publicity should be governed by a single, preclusive, federal law, not by a mishmash of state laws.

* Europe's General Data Protection Regulation (GDPR) is far too expansive and far too protective of privacy rights to the detriment of other legitimate interests.

* The scope of the applicability of the GDPR to people who are not in Europe, but can have dealings with Europeans over the Internet is far too unclear.

Traffic Laws

* Speed limits should reflect the speed that an ordinary reasonable driver would travel on a road as it is designed. Local governments should not be allowed to set lower speed limits than the road conditions reflect in response to local community pressure. If a local government wants traffic to move more slowly than the legally authorized speed limit given the road conditions, it needs to redesign the road, rather than just creating a speed trap.

* When push comes to shove, bicycles should be regulated as pedestrians not as motor vehicles. They should go on sidewalks and designated bike paths in most cases, rather than being expected to share designated highways and arterial streets with automobiles. A bicycle crashing into a pedestrian is much less serious than a car crashing into a bicycle.

Debt Collection

* It should be a serious offense to try to collect zombie debts that are barred by the statute of limitations or have been discharged in bankruptcy.

* It should be a serious offense to try to collect debts from the next of kin of debtors who have not guaranteed the debt in writing, rather than the decedent's probate estate.

Medical Billing

* Until the day when we have universal health care, health care providers to patients with health insurance should be forbidden from trying to collect their bills directly from the patient beyond a health insurance policy authorized co-pay to be paid at the time of service. Any provider that accepts any payment from that patient's health insurance should be required to honor the health insurance company's disallowance of their charges. And, health insurers should have to pay the full allowed charge to the health care provider and then collect the patient's share of that charge under the insurance policy from the patient. Patients shouldn't be put in the middle and as a guarantor in the face of disputes between health care providers and health insurers. A patient should be able to know exactly what he or she will owe simply by reading their health insurance policy.

* Emergency rooms shouldn't be allowed to charge more to someone who errantly went to an ER instead of an urgent care facility for the same services. The task of getting someone to the right level of care takes medical knowledge and should be the responsibility of the health care provider.

* Health care providers shouldn't be allowed to charge different rates for the same work done at a hospital affiliated facility (which is often billed at a higher rate) than at another facility.

* When there are contingent fee lawsuits for personal injuries, health care providers with health care liens on the recovery should have to share the risk in a way that afford the injured person some benefit of the lawsuit according to a standard formula that doesn't have to be negotiated on a case by case basis.

Court E-Filing Discrepancies

* Court E-Filing systems should have much less authority to just reject filings. Instead, if there is problem with the way that the filling was put into the e-filing system, that correction should just be made by the system, and if there is a problem with the document filed itself, it should issue an order to show cause directing the filer to correct it in a clearly described manner before a reasonable deadline to prevent it from being stricken with a loss of the original filing date.

Municipal Ordinances

* Municipalities and local governments should not be permitted to punish ordinance violations with incarceration or arrest. Incarceration should be limited to violations of state laws.

* Colorado should abolish municipal courts and require municipal ordinance violations to be enforced in civil actions brought by city attorneys in county courts that are part of the state court system.

New Colorado Laws

Many Colorado laws take effect on July 1 each year. This year is no exception:

Twenty-one new laws that the legislature passed this year will kick in at the start of July. Among them are laws covering the state plumbers board, creating a new Colorado Disability Opportunity Office and adding gender identity to the state’s protected classes in bias-motivated crimes.

Several laws passed in previous years will also go into full effect Monday, including a measure approved in 2021 that allows Colorado consumers to opt out of having their personal data sold or used to generate targeted advertising. 

Another bill passed in 2021, which banned single-use plastic bags at checkout lines at the start of this year, has another provision taking effect Monday that will allow local governments to enact even stricter plastic bag limits.

Here are six other new laws set to go into effect: 

Occupancy limits . . . 

House Bill 1007 prohibits local governments from limiting how many unrelated adults can live together in an apartment or housing unit. For college towns like Boulder or Fort Collins, that means cities generally can’t cap how many roommates can live together, except for health and safety reasons. Roughly two dozen Colorado cities and towns had occupancy limits, though only a few — including Fort Collins — actively enforced them. . . . 

Sexual assault cases . . . 

House Bill 1072. . . . It blocks defendants and defense attorneys from using what a sexual assault victim was wearing as evidence of consent in court. The new law also tightly limits how the victim’s previous sexual history, including with the defendant, can be used in court. . . .

Limit on poison

Sodium nitrite is a preservative used often used in curing meats. But in higher concentrations, it can be fatal when ingested by people, and it’s increasingly been used in suicides here and elsewhere in the United States. That’s made easier by the availability of the higher-potency substance for purchase online or in sporting good stores. Starting Monday under House Bill 1081, those higher potencies will no longer be available in Colorado except for approved commercial purposes. . . . 

Fewer guns in sensitive spaces

One of several gun-reform bills passed this year, Senate Bill 131, prohibits the open or concealed carrying of firearms in public or private schools, on university and college campuses, and in child care centers. The new prohibition also covers certain government buildings and the state Capitol. . . .  The bill . . . does allow local governments to opt out of its provisions. The Douglas County Board of Commissioners did so in May. 

Elections protections . . . 

House Bill 1147, requires political ads and messaging to prominently disclose when they include a “deepfake,” meaning an artificially generated picture, video or voice that replicates a real person. . . . 

House Bill 1150, extends existing criminal penalties and fines to people who participate in attempts to organize false slates of presidential electors. Essentially, that means anyone who attempts what a group of lawyers and officials tried in 2020 in support of then-President Donald Trump will face specific criminal liability in Colorado. . . . Colorado’s new law takes existing crimes like perjury or forgery and expands them to include a person seeking to participate in a false elector scheme.

Jefferson County Courthouse Case Proceeds

I've previously noted that the Court of Appeals decision in this case, a premises liability case at the Jefferson County, Colorado courthouse (commonly known as the Taj Mahal) would be a great one for a law school textbook. Now, the Colorado Supreme Court has affirmed this ruling. The Colorado Supreme Court opinion (County of Jefferson v. Strickle, 2024 CO 7, ¶ 1) explains that:

Beverly Stickle lost her balance and fell when she stepped down from a walkway to the parking lot surface at a parking structure adjacent to the Jefferson County Courts and Administration Building. She broke her arm and subsequently sued Jefferson County (“the County”) for damages sustained from the accident. The County moved to dismiss, arguing that it was immune from suit under the Colorado Governmental Immunity Act (“CGIA”) because (1) the parking structure is not a “building” and (2) the condition that Stickle alleges caused her injury was solely the consequence of the parking lot’s “design.” If either of these arguments were successful, the County would indeed be immune from suit. However, we conclude that the parking structure at issue is a building as that word is used in the CGIA and that the dangerous condition that Stickle alleges caused her fall is not attributable solely to the design of the parking structure. Accordingly, the County is not immune from suit, and Stickle’s claim may proceed. 

The Trump Ballot Qualification Trial

The Insurrection Clause And Colorado Trial Explained

Today is the fourth day of five in the Trump ballot qualification trial in Denver, Colorado's state court of general jurisdiction. It is a bench trial mandated by Colorado's state election laws and brought by political action group CREW to determine if former President Trump is ineligible to run for public office as a result of the disqualification set forth in Section 3 of the 14th Amendment to the U.S. Constitution, as a result of his efforts, including but not limited to the January 6, 2021 Capitol Riot, to overturn the 2020 Presidential election that he lost.

Factually, the CREW case leans heavily on and parrots the final report of the United States House Select Committee on the January 6 Attack for its evidentiary case.

The Colorado case is one of many cases challenging Trump's qualification to serve as President under the insurrection clause. 

But, the Colorado ballot access case is important because it is the first of these cases to be tried on the merits (although parallel ballot access litigation in Minnesota is also very advanced).

 

The relevant language from the U.S. Constitution, also known as the Insurrection Clause, states that:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

One purely legal question is whether the clause applies to the office of President of the United States. The court has rightly rejected the dubious argument that the Presidency is not included in the statement that: "No person shall be a . . . elector of President and Vice President, or hold any office, civil or military, under the United States" in Section 3.

Another purely legal question is whether the President is "an officer of the United States" (since former President Trump took the oath of office to support the Constitution of the United States only after he was elected President). The judge has rightly rejected the dubious argument that the President is not an officer of the United States.

It is undisputed that Congress has not removed this disability if it does apply to former President Trump.

The Court has also rejected challenges to the standing of the Petitioners in the case, the ripeness of the challenge, given that Trump hasn't been elected yet, and has rejected the claim that Section 3 of the 14th Amendment may not be enforced in a civil lawsuit today because no authorizing federal legislation to allow that is in force. The judge has concluded that the private cause of action allowed by Colorado's election laws are sufficient.

Numerous historical precedents have held that this determination may be made in a civil lawsuit and does not require a criminal conviction, contrary to Trump's argument that a criminal conviction is required.

So, the core mixed question of fact and law before the Court in its five day evidentiary bench trial is whether Trump has engaged in insurrection or rebellion against the Constitution of the United States, or has given aid or comfort to the enemies the Constitution of the United States.

This requires the Court to both determine whether Trump took the actions that the Petitioners allege that he did, and to determine if the actions that the Court finds that Trump did take amount to "insurrection or rebellion against the Constitution of the United States", or to giving "aid or comfort to the enemies the Constitution of the United States."

The Petitioners note that historically, people have been disqualified from office under the insurrection clause for acts far less weighty than Trump's. 

Trump and the Colorado Republican Party have argued that Socialist Eugene Debs was allowed to run for President while in prison. In particular, "Debs was allowed to run for president despite serving time in prison for sedition for publicly discouraging military recruitment during World War I." Of course, in this 1920 election campaign, Debs was a third-party candidate with little or no chance of winning the race who received just 3.41% of the vote. Debs was sentenced, on September 18, 1918, to ten years in prison and was also disenfranchised for life. His conviction was affirmed by the U.S. Supreme Court in 1919, but his sentence was later commuted by President Harding on December 23, 1921, although Debs was not pardoned, after Congress repealed the statutes under which Debs was convicted earlier that year. It isn't clear to me, however, that his disenfranchisement, or the insurrection clause argument, was ever raised in that case to oppose his eligibility to run for President. 

In contrast, Donald Trump has previously served as President for four years, and is the clear front runner in the 2024 Republican Presidential Primary. Trump remains the far and away front runner in the GOP primary, despite the fact that he is currently facing four felony criminal cases (a criminal business fraud case in New York State, a classified documents case in a Miami, Florida federal court, a D.C. based case arising out of the January 6 riot, and a Georgia state court election interference case in which several co-defendants from his inner circle have already pleaded guilty), having already partially lost a $250 million civil fraud case in New York State on a motion for summary judgment the balance of which is still being tried in a New York State court, and having recently lost a defamation and rape case in which he was found to have sexually assaulted a woman and then lied about not having done it. He also faces other civil lawsuits (e.g. a lawsuit as a co-conspirator in a personal injury case of a law enforcement officer injured in the January 6 riot) and other ballot qualification lawsuits which are likely to be decided before the Presidential election is held in November of 2024, just about a year from now.

A Plausible Worst Case Outcome For Trump

From what I have seen so far, it seems more likely than not that District Court Judge Sarah B. Wallace will find that Trump is disqualified from serving as President under this constitutional provision commonly known as the insurrection clause. The Denver Post editorial board thinks that she should find that Trump is disqualified from running for President on this ground.

It also seems likely that the Colorado Supreme Court is likely to affirm Wallace's ruling, if that is the one she makes, on appeal. Then, the question is whether the U.S. Supreme Court would take up the case.

If the U.S. Supreme Court denies certiorari after the this case has excluded Trump from the ballot (which seems unlikely), or if it does take up the case and affirms a ruling of Judge Wallace that Trump is not qualified to serve as President under the insurrection clause (despite its 6-3 conservative supermajority), then Trump's Presidential race is over. So far, Trump's record in the U.S. Supreme Court has been mixed, despite his role in appointing more than one sitting U.S. Supreme Court justice.

This is because Trump is a party actively litigating this case, and the legal doctrine of collateral estoppel says that the resolution any legal issue finally determined in an actively litigated lawsuit against someone bind the person the ruling was made against in all future civil lawsuits. Collateral estoppel is one sided because it is party driven. It binds Trump when he was a litigant in a previous case, but it does not bind new Plaintiffs in other cases, who weren't litigants in previous cases.

So, if Trump loses the Colorado ballot access case (or another other ballot access case to which he is a party brought by different petitioners like a parallel case in Minnesota), after all appeals in the case are exhausted, he automatically loses every other ballot qualification case that is brought against him in every other U.S. state.

What Happens If Trump Can't Run For President?

If Trump is not on the ballot, the 2024 Republican Presidential Primary would be turned upside down, and the prospects of the Republican candidate emerging from the primary in a general election matchup against incumbent Democrat Joe Biden would have to be reevaluated from scratch.

Trump and Biden have been in a statistical dead heat in 2024 Presidential general election polling for months. But many Republicans might not vote at all if Trump wasn't on the ballot. On the other hand, a Republican candidate other than Trump wouldn't be nearly as tarnished by Trump's bad character and criminal prosecutions with moderate swing voters who dislike Biden but see him as the lesser of two evils.

Given the good substantive economic news and news on a variety of other barometers of national well being, and the evidence that shows that when incumbents run for re-election that the race is usually a referendum on the incumbent's performance, it isn't entirely clear while Biden is polling so very poorly. But that is the reality, and even many Democrats, myself included, don't really love him as the Democratic party's standard bearer, even though he is clearly better than any of the Republican challengers that he might face, and is clearly better than any of the stronger third-party candidates.

More darkly, there is good reason to fear the removing Trump from the ballot could drive far more efforts from the far right to use violent political tactics than they already have so far, after seeing their efforts to gain power through the electoral process thwarted.

What Do Colorado Attorneys Do?

It is helpful now and then to examine the relative importance of different kinds of practices that lawyers in Colorado engage in to understand the "typical" kinds of legal practices out there. 

From the 2022 Annual Report of Colorado's Office of Attorney Regulation Counsel.

A very large share of all criminal litigation in the state, which makes up a large share of all court business, is conducted by lawyers who work in a DA's office (15% of government lawyers) or a public defender's office (13% of government lawyers), of whom there are about 1,355 combined out of about 29,000 active lawyers in the state (about 5%).

A few criminal cases are handled by the state attorney-general's office (with 430 attorneys), and some ordinance violation cases are handled by city attorneys (357 attorneys, mostly part-time), and county attorneys (242 attorneys, many part-time in smaller counties), but the lion's share of the criminal case work is done by the DA's office and the public defender's office. There are some criminal defendants who are represented by private criminal defense attorneys, but these defendants are definitely a minority of all criminal defendants.

A very large share of all jury trials in the state are in criminal cases, which are mostly handled by a tiny percentage of all lawyers in the state. As noted here:

For example, in 2006 in Colorado, in state courts there were 1,776 criminal or quasi-criminal jury trials (plus about 35 quasi-criminal parental rights termination jury trials). . . . In federal court, there were 22 criminal jury trials. . . . 

As of 2006, there were 337 civil jury trials, about 240 of which were in tort cases (the vast majority of which involve personal injuries in accidents), and about 97 of which were in other matters: 

There were just 17 limited jurisdiction civil trials in state court. . . . About 54% of civil trials in federal court (43 jury trials and 36 bench trials) and 50% civil trials in general jurisdiction state courts were to juries (277 jury trials and 280 bench trials), with about 75% [of civil jury trials] in tort cases)[.]

Of course, the vast majority of litigated case of all types are resolved without trials, either by a default judgment, in motion practice, by settlement, or by a guilty plea.

Colorado Has Authorized Licensed Legal Paraprofessionals

Colorado's Supreme Court has adopted a new set of court rules that allows licensed legal paraprofessionals to operate independently to represent parties to a limited extent in certain kinds of cases. The scope is limited to fairly simple family law matters and does not involve serving in a role similar to a lawyer in an evidentiary hearing. 

The first rule of the set explains the scope of this practice:

Rule 207.1. Licensed Legal Paraprofessionals’ Scope of Authority to Practice 

(1) Licensed Legal Paraprofessionals (“LLPs”) are individuals licensed by the Supreme Court pursuant to this rule to perform certain types of legal services only under the conditions set forth by the Court. They do not include individuals with a general license to practice law in Colorado. 

(2) An LLP’s scope of licensure is limited as follows: 

(a) An LLP may represent a client to perform tasks and services identified under section (2)(f) of this rule in a legal separation, declaration of invalidity of marriage, or dissolution of a marriage or civil union. 

(b) An LLP may represent a client to perform tasks and services identified under section (2)(f) of this rule in an initial allocation of parental responsibility (“APR”) matter, including parentage determinations, that is not part of a dissolution of a marriage or civil union. 

(c) An LLP may represent a client to perform tasks and services identified under section (2)(f) of this rule in a matter involving modification of APR regardless of whether the initial APR was part of a dissolution of a marriage or civil union, or modification of child support and/or maintenance. 

(d) An LLP may represent a client to perform tasks and services identified under section (2)(f) of this rule in any of the following matters: protection orders, name changes, and adult gender designation changes. 

(e) An LLP’s authority to practice law under any section of this rule includes filing and responding to motions for remedial contempt citations under C.R.C.P. 107. 

(f) Even if an LLP is authorized to represent a client pursuant to sections (2)(a), (2)(b), (2)(c), (2)(d) and (2)(e), an LLP is not authorized to represent a client in any of the following: 

(i) the registration of foreign orders; 

(ii) motions for or orders regarding punitive contempt citations under C.R.C.P. 107; 

(iii) matters involving an allegation of common law marriage; 

(iv) matters involving disputed parentage where there are more than two persons asserting or denying legal parentage; 

(v) matters in which a non-parent’s request for APR is contested by at least one parent; 

(vi) preparation of or litigation regarding pre- or post-nuptial agreements; 

(vii) matters in which a party is a beneficiary of a trust and information about the trust will be relevant to resolution of the matter; 

(viii) matters in which a party intends to contest jurisdiction of the court over the matter; 

(ix) the preparation by the LLP of a qualified domestic relations order (“QDRO”) or other document allocating retirement assets that are not liquid at the time of the matter; 

(x) the preparation by the LLP of documents needed to effectuate the sale or distribution of assets of a business entity or commercial property; 

(xi) matters in which an expert report or testimony is required to value an asset or determine income due to the inherent complexity of the asset or income at issue; or 

(xii) issues collateral to, but directly affecting, a matter which falls within the LLP’s scope of practice when such issues require analysis and advice outside that scope of practice, such as immigration, criminal, and bankruptcy issues that could directly affect the resolution of the matter. 

(g)Within the types of matters and authorizations to practice law identified in section (2)(a), (2)(b), (2)(c), (2)(d) and (2)(e) of this rule, an LLP who is in good standing may represent the interests of a client by: 

(i) establishing a contractual relationship with the client; 

(ii) interviewing the client to understand the client’s objectives and obtaining information relevant to achieving that objective; 

(iii) informing, counseling, advising, and assisting the client in determining which form (among those approved by the Judicial Department or the Supreme Court) to use as the basis for a document in a matter, and advising the client on how to complete a form or provide information for a document; 

(iv) preparing and completing documents using forms approved by the Judicial Department or the Supreme Court, including proposed parenting plans, separation agreements, motions or stipulations for child support modification, child support worksheets, proposed orders, nonappearance affidavits, discovery requests and answers to discovery requests, trial management certificates, pretrial submissions, and exhibit and witness lists; 

(v) obtaining, explaining, and filing any document or necessary information in support of a form or other document, including sworn financial statements and certificates of compliance; 

(vi) signing, filing, and completing service of documents; 

(vii) reviewing documents of another party or documents and forms prepared by a pension or retirement plan which allocate pension or retirement benefits pursuant to a decree of dissolution, and explaining them to the client; 

(viii) informing, counseling, assisting and advocating for a client in negotiations with another party or that party’s representative and in mediations; 

(ix) filling in, signing, filing, and completing service of a written settlement agreement in conformity with the negotiated agreement; 

(x) communicating with another party or the party’s representative regarding documents prepared for or filed in a case and matters reasonably related thereto; 

(xi) communicating with the client regarding the matter and related issues; 

(xii) explaining a court order that affects the client’s rights and obligations; 

(xiii) standing or sitting at counsel table with the client during a court proceeding to provide emotional support, communicating with the client during the proceeding, answering questions posed by the court, addressing the court upon the court’s request, taking notes, and assisting the client in understanding the proceeding and relevant orders; 

(xiv) providing clients with information about additional resources or requirements, such as parenting education classes, and filing certificates of completion with the court; and 

(xv) advising clients regarding the need for a lawyer to review complex issues that may arise in a matter. 

(h) An LLP is not authorized to conduct an examination of a witness. The LLP may only address the court pursuant to section (2)(g)(xiii) of this rule. 

(i) Limits on the activities that can be performed or matters that can be undertaken by an LLP under this rule do not, by themselves, require the LLP to withdraw from the representation of a client if the LLP can provide authorized services to that client. Nothing in this rule precludes a client of an LLP from retaining a lawyer or acting pro se in the same matter in which the client has retained an LLP when an activity, task or issue is outside the LLP’s authorized scope of practice.

According to a Colorado Supreme Court Office of Attorney Regulatory Counsel email newsletter:

LLPs must satisfy the admissions requirements set forth in the rules, including those in C.R.C.P. 207.8. That rule provides for a degree-plus-experience track or a longer experience track, but either way an LLP must take a legal ethics class and pass both an ethics exam and a family law exam. The Advisory Committee on the Practice of Law and Office of Attorney Regulation Counsel (“OARC”) are starting the process of assembling the infrastructure for those exams.

The LLP program is the culmination of years of studying the issue of unrepresented litigants in family law cases – around 75 percent of the parties in such cases – and the programs in other states that have authorized non-lawyers to provide certain services. These licensed paralegals/paraprofessionals often charge hourly rates roughly one-quarter to one-half the typical rates of attorneys.

Non-Lawyer Judges Are A Bad Idea

I usually agree with Jared Polis, the Governor of Colorado, but his decision to appoint a non-lawyer to a county court post this year, while legal, was a bad one that denies real justice to hundreds or thousands of litigants a year. If he hadn't appointed this non-lawyer judge, Colorado would have been down to three and could have slowly reduced the number to zero as incumbent judges retired.

County court judges in Colorado don’t need law degrees to sit on the bench in most parts of the state.

They don’t need college degrees, either. People with high school diplomas or GEDs and no legal training can become county court judges in 45 of the state’s 64 counties, presiding over lower-level criminal and civil cases with all the authority of any other county court judge.

Proponents of these so-called “lay judges” say the lower educational qualifications are key to filling judgeships in Colorado’s rural and remote counties where the positions might otherwise go unfilled because of a lack of local attorneys interested in the job. Critics suggest non-attorney judges aren’t qualified to interpret the law and mete out justice, even in low-level legal matters.

There are only four lay judges working in Colorado right now, a Denver Post review of the state judiciary found. The newest, Michael Halpin, was appointed by Gov. Jared Polis in October as a county court judge in Custer County.

Polis chose Halpin, a resident of Custer County and former sheriff’s deputy with a high school education, over an attorney candidate who lives in Loveland.

The other lay judges currently on the bench are: Kristei Jones, a rancher and veteran in Yuma County with a high school education, Truston Lee Fisher, a college-educated veteran whose been on the bench in Lincoln County since 1987, and Richard Medina, a college-educated former building inspector, in Crowley County.

The state’s four lay judges either declined interview requests or could not be reached.

Medina is the third consecutive lay judge to hold the role in Crowley County, Chief Judge Mark MacDonnell said, and being able to fill that job with non-attorneys has been critical over the years.

“For those three instances, there were not attorneys (who applied), so there would not have been a Crowley judge had there not been a lay judge willing to take it,” MacDonnell said. 

. . .  

Lay judges are nominated, appointed, evaluated and paid in the same way as judges with law degrees. The Judicial Performance Commission’s reviews of lay judges have been mixed in recent years. The evaluators in 2020 suggested Medina needed to improve his legal knowledge and consistency in following procedures.

“The Commission understands the challenges that a lay judge faces,” evaluators wrote. “As Judge Medina is not an attorney, he faces greater challenges than other judges. However, this does not excuse Judge Medina from being an ineffective judge.”

Another lay judge, Fisher, received a score that was higher than the average for all county court judges, both attorneys and not, the evaluations show.

Across the country, 27 states allow lay judges to work in some capacity, said Bill Raftery, senior analyst at the National Center for State Courts. . . . familiarity with the community has also become also a critique of lay judges, Raftery said, with critics suggesting the judges struggle to be impartial because of their close community ties and lack of legal training.

Colorado’s current lay judges include former law enforcement and prison officers, a former town mayor and a former school board member. McCallum said lay judges use their non-traditional backgrounds to their advantage when presiding over cases.

From the Denver Post. 

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.

Colorado Moves Forward On Independent Domestic Relations Paralegals

The Colorado Supreme Court in a newsletter today states that: 

Licensed Legal Paraprofessional Proposal Open for Public Comment 

The Colorado Supreme Court has published for public comment the implementation plan to license legal paraprofessionals (“LLPs”) for a limited practice of law in the area of domestic relations. The 26-page plan outlines how interested paraprofessionals who meet educational and experiential requirements could become licensed for this limited practice of law by taking and passing designated family law and ethics exams and clearing character and fitness requirements.

The scope of practice would include marital dissolution and allocation of parental responsibility cases when the client meets certain income or asset criteria associated with less complicated matters. Under the current proposal, LLPs would be allowed to accompany their clients to court, and could respond to factual questions if requested by the court, but would not be allowed to orally advocate for their clients or to conduct hearings or trials.

The Court is inviting public comment on the entire proposal, and specifically the issues of what asset or income criteria are appropriate limits for LLP representation of clients. A working group has proposed that the LLPs would be allowed to serve only clients in marital dissolution cases with a net marital estate of $200,000 or less. The same working group proposed that an income cap be set for representing a client in an allocation of parental responsibility matter, which could be a dollar threshold or a percentage of federal poverty guidelines. Cases involving more assets or income tend to correlate with more complex issues for which a lawyer’s education and expertise may be needed.

Utah, Washington, and Arizona now have licensed legal paralegal or legal technician programs covering certain types of family law matters, among other matters. These jurisdictions have reported that many if not most of these licensed non-lawyers practice in firms with lawyers, but may be more affordable to modest-means clients. A number of other states are either considering or piloting similar programs.

To review the implementation plan and the various proposed rule and statutory changes, and for instructions on how to provide public comments, go to the Court’s proposed rule change website and review the information under “PALS implementation report and plan.” The deadline for public comments is September 14, 2022 at 4 p.m.

The Colorado Bar Association is hosting a virtual “town hall” where speakers from the working group will provide more information and answer questions about the implementation plan. That event is August 9, 2022, from 12-1 p.m. The CBA will post the link to participate at its website. The event is open to both members and non-members of the CBA, and is open to non-lawyers.

Additional information and updates about the LLP program can be found here.

I was on the Colorado Bar Association committee that started work on the proposal many years ago, but left when the CBA came down strongly against the development. In a rare move, however, the Colorado Supreme Court pushed to move forward despite CBA opposition.

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.