The Colorado Supreme Court in 2007

While they aren’t necessarily household names, most people who are politically aware have some idea about the judicial ideology of the justices of the United States Supeme Court.  In contrast, even many of the tens of thousands of Colorado lawyers don’t know our state’s supreme court justices very well.

A statistical analysis of the 57 opinions delivered by the Colorado Supreme Court so far in 2007, and in particular, of the 16 dissenting and 10 concurring opinions issued so far this year, provides some insight into the dynamics of Colorado’s highest state court.The Justices

There are seven members of the Colorado Supreme Court. They are, with their respective dates of appointment:

Appointees of Roy Romer (a Democrat)
Chief Justice Mary Mullarkey (June 29, 1987)
Justice Gregory J. Hobbs, Jr. (April 18, 1996)
Justice Alex J. Martinez (September 12, 1996)
Justice Michael L. Bender (January 2, 1997)
Justice Nancy E. Rice (August 5, 1998)

Appointees of Governor Owens (a Republican)
Justice Nathan B. Coats (April 24, 2000)
Justice Allison Eid (February 15, 2006)

A Note on Recusals

Justices sometimes do not participate in a case at all.  Usually, this is due to a conflict of interest.  In 2007, so far, Justice Eid has recused herself from 23 of the 57 opinions delivered (usually an opinion is in one case, but sometimes it covers a couple of cases), while Justices Bender, Rice and Hobbs have each not paticipated in one opinion this year (in no case has there been more than one justice not participating in a given opinion).

Justice Eid was  Colorado’s Solicitor General (i.e. the official in the attorney-general’s office who is in charge of cases before the Colorado Supreme Court) before her appointment to the Court.  As a result, she worked on many of the cases that have come before the court while representing the State of Colorado, especially criminal law cases.

This trend should change significantly in 2008, as most of the cases she was involved with during her tenure as solicitor general will have worked their way through the system by then.  Justice Eid’s criminal and public law jurisprudence will then become more clear, although no surprises are expected from the conservative Justice who clerked for U.S. Supreme Court Justice Thomas.

The Dissents

So far in 2007, there have been sixteen dissenting opinions filed in the Colorado Supreme Court.

Dissents by Justice:

Coats 9
Eid 7 (out of 34 matters in which she participated)
Rice 5
Martinez 5
Bender 4
Mullarkey 3
Hobbs 1

The raw numbers don’t show the coalitions of Justices involved, however.

Justices Coats, Eid and Rice has joined in three dissents together, and none of them have ever joined as dissent by any of the other four Justices this year.  Justices Rice and Eid have dissented together in two other cases.  Justices Coats and Eid have dissented together in two other cases.  Justice Coats has dissented alone three times.

In one case Justices Coats and Martinez both dissented (at least in part) for different reasons.

Justices Martinez and Bender and Chief Justice Mullarkey have dissented together twice.  Justices Martinez and Bender have dissented together two other times.  Chief Justice Mullarkey and Justice Hobbs have dissented together once.

The Concurring Opinions

While a dissent is a disagreement with the majority of the court on the result in a case, in a concurrence, a justice states that he or she agrees with the result, but not with the reasoning in a case.

The ten concurring opinions show a similar pattern.

Concurrences by Justice:

Coats 8
Eid 5
Martinez 2
Bender 2
Rice 1

Coats and Eid concurred together four times.  Coats and Rice concurred together once.  Coats concurred alone three times (twice in cases where Eid and Rice dissented together).

Martinez and Bender concurred together once, and together with Justice Eid once.

Analysis

Simply looking at the patterns of dissents and concurrences, it is possible to piece together the “normal” alignments of Justices on the Court (keeping in mind, of course, that a majority of the time, all Justices who participate in a case are unanimous).

The Big Divide

The big division is between Justices Rice, Coats and Eid on one hand, and Justices Hobbs, Mullarkey, Martinez and Bender on the other.  This breakdown apparently failed to hold only twice so far this year, and closer examination of those two cases show that it really failed to hold only once.

Once, in a concurrence in a case over a pre-nuptial agreement, Justice Eid joined Martinez and Bender to disagree over the reason that a wife was entitled to attorneys’ fees despite the fact that the agreement barred an attorneys’ fee award to her.  This non-result impacting disagreement was a technical issue of statutory intepretation, rather than involving a more liberal v. conservative divide.

The other involved the death penalty appeal of Edwart Montour, Jr., a death penalty volunteer who killed a prison guard, where the court remanded the case to determine if Montour had knowingly waived his right to a jury regarding the death penalty sentencing decision.  Justice Martinez would have held that the statute required that a death penalty not be imposed in any case where a defendant pleads guilty.  Justice Coats would have upheld the death sentence.  Thus, while Justices from the two camps both dissented in the case, one dissented to the “left” of the majority, while the other dissented to the “right” of the majority, and the appearance of agreement created by the fact that both Justices dissented is illusory.

While the division of the justices into these camps is a purely statistical fact, it hardly inserts bias into the analysis to recognize that the group composed of Rice, Coats and Eid makes up the more conservative of the justices, while Hobbs, Mullarkey, Martinez and Bender are the more liberal of the Justices.

Within The Big Divides

Among the three conservative justices of the Colorado Supreme Court, Rice, who was appointed by a Democrat is the most moderate, as she dissents from the liberal majority less often.  Republican appointees Eid and Coats are both conservative relative to the liberal majority, but, until the public law and criminal cases Eid is conflicted out of work their way through the docket, it won’t be possible to tell if she is similar in judicial philosophy to Justice Coats, or is actually much more conservative than he is, which is a possibility.  The fact that Justice Eid dissented in a higher percentage of the cases she considered, and dissented outright in a couple of cases where Justice Coats merely concurred, suggests that she may ultimately be the more conservative justice of the two

Among the four liberal justices of the Colorado Supreme Court, Justice Hobbs is the swing vote for the Court.  He has joined the three conservative Justices twice, to put the other liberal Justices in dissent.  Justice Hobbs has been in dissent only once so far this year.  In that case, in which he was joined by the Chief Justice in dissent, Justice Hobbs argued that an interpretation of an affidavit in an arbitration dispute should have been resolved by the Colorado Supreme Court on the merits, rather than remanded to a trial court for a summary determination consistent with the Colorado Supreme Court’s reasoning, a close procedural question that is hardly a huge ideological dispute.

It is also fair to describe Justices Martinez and Bender as more liberal than Justice Mullarkey, as they have dissented from decisions agreed to by all of the conservative Justices more often Justice Mullarkey.

Justices Martinez and Bender have a very high rate of agreement.  The only case where they did not reach the same decision was the death penalty case of Edward Montour, Jr. discussed above.  There, Justice Martinez took the more liberal position.  But, even there, it isn’t clear that this indicates a big difference of opinion between the two justices.

There were only six Justices participating in that case (Justice Eid who helped litigate the case for the state did not participate), so four votes out of six were needed to reach a decision.  Justice Coats and Justice Martinez, as discussed above, dissented.  Justice Bender wrote the majority opinion.

Normally, one would think of the vote of Justice Martinez as the more liberal vote, because he voted to end the possibility of a death sentence.  But, the fact that Justice Bender wrote that decision, and that he is one of the two most liberal Justices on the Colorado Supreme Court, suggests another intepretation.  Justice Bender’s opinion was probably crafted in recognition that could not win assent to Justice Martinez’s position from at least two of the other three liberal Justices to definitively strike down the death penalty in this case.  By creating a middle ground, Justice Bender left the door open for further proceedings, rather than leaving the lower court decision to be affirmed.

Also, one case is too little to base an overall opinion of a judge’s philosophy upon.

Conclusion

Based upon the decisions made so far in 2007, the judicial philosophy of Colorado’s Supreme Court Justices can be described as follows (on a relative basis):

Justice Eid (conservative)
Justice Coats (conservative)
Justice Rice (moderate conservative)
Justice Hobbs (moderate liberal, swing vote)
Chief Justice Mullarkey (moderate liberal)
Justice Bender (liberal)
Justice Martinez (liberal)

The fact that Justice Mullarkey is the Chief Justice, while Justice Hobbs is the swing vote, in a court where the Justices select their own chief, is likely attributable to the fact that Justice Mullarkey and Justice Hobbs are still very close in judicial philosophy and to the fact that Justice Mullarkey is the most senior justice on the Court by about nine years.

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Andrew Oh-Willeke

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