Colorado Supreme Court elections, 2008
In November 2008, two Colorado Supreme Court Justices - Eid and Hobbs - have expiring terms and thus face a retention vote. Assuming an affirmative retention vote, both justices will serve an additional ten years on the state's highest court. If a Justice is not retained, the vacancy would be filled by the Governor like any other vacancy. No appellate judge has ever been not retained in this manner since the retention election system was put in place in 1966. The Justices are not partisan officials, although they are ultimately elected by a partisan elected official.
Colorado voters elected to retain both Justices overwhelmingly on the November 2008 ballot. Justice Eid was retained with 74.6% of the vote and Justice Hobbs was retained with 72.4% of the vote.
Justice Eid has been described as a judicial conservative, and as someone who exercises judicial restraint and "...will interpret the law as it is written, stand firm on legal principles and carry out her duties in a professional and collegial manner." This view is supported by how she ruled - and dissented - in a number of cases.
- Hanover School District No. 28 v. Barbour (2007)
In this case, Justice Eid authored the dissenting opinon which objected to the majority's finding that a teacher was entitled to an entire year of back pay where he had not lost a year's salary, since he immediately found another job upon learning that his contract was not going to be renewed. The dissent noted that Colorado contract law is "clear that breach of employment contract damages are to be offset by earnings from alternative employment" and should have reduced the plaintiff's damages award to the extent that lost earnings were avoided.
- People v. Arias (2007)
In this case, Justice Eid dissented (along with Justices Rice and Coats) over the majority opinion which concluded that a police officer's search of a defendant and his vehicle resulting in the discovery of marijuana and cocaine was unconstitutional because the officer's stop was predicated only on the belief that the tree-shaped air freshener hanging from the rear-view mirror unlawfully obstructed the defendant-driver's vision. In the dissent, Justice Eid protested that because the trial court had concerns about the vagueness of the obstructed view statute, it wasn't able to adequately make a finding about whether the air freshener actually did obstruct the defendant's view of the road. Thus, the case should have been remanded to the trial court for further findings.
- In re Phillips (2006)
In this case, Justice Eid dissented over the majority opinion in which the Court adopted the "reverse piercing of the corporate veil" doctrine, allowing a plaintiff to recover against a corporation for the liabilities of one of its shareholders (opposed to traditional "piercing of the corporate veil" which involves recovery against a shareholder for liabilities of a corporation). The dissent criticized the majority for adopting a "new principle of law" without "the benefit of a full factual record" painting the majority opinion as activist on a public policy question rather than as a legal determination.
For more information see the full article on Justice Eid at this link.
Justice Hobbs rules markedly differently than Justice Eid. As a point of contrast, in the three dissents of Justice Eid listed above, Justice Hobbs was in the majority on all three: Hanover School District No. 28 v. Barbour (2007), People v. Arias (2007), and In re Phillips (2006)|Phillips.
- Flood v. Mercantile Adjustment Bureau, LLC (2008)
Justice Hobbs authored the majority opinion in this case which created a new standard of law to apply to debt collection cases: the least sophisticated consumer standard. Under this standard, correspondence from creditors will have to convey notices so that the "least sophisticated" of consumers would understand it. Justice Eid's dissent stated that the majority's rule "penalized creditors for permitting consumers to contact them by phone and for giving consumers additional time to consider a settlement offer after they dispute a debt" and "may well harm consumers in the long run" since "after today, to avoid any such 'confusion' posited by the majority, collection agencies may simply prevent consumers from contacting them by phone."
For more information see the full article on Justice Hobbs at this link.
In 1988, the Colorado General Assembly created Commissions on Judicial Performance to provide voters with evaluations of trial and appellate judges and justices seeking retention in general elections.
See this link to Justice Eid's 2008 performance evaluation. Justice Eid scored in a range from at to well-above the average for her peers across all categories.
See this link to Justice Hobbs' 2008 performance evaluation. The only notable areas of Justice Hobbs' evaluation are that he scored below his peers in two categories: "Making reasoned decisions based upon the law and facts" and "Refraining from reaching issues that need not be decided."
Many cases presented to the Colorado Supreme Court are decided unanimously. However, Justice Eid and Justice Coats tend to dissent more frequently than any of the other justices from decisions of the Court, often on "conservative" grounds, and together in a single opinion. Since Justice Eid has joined the Court, Justice Hobbs has held the "swing vote" on the Court. Hobbs has dissented only once in 2007, as of July 19, 2007. This is less than any other Justice on the Court.
Justice Eid recuses herself from consideration of cases before the Court much more frequently than the other Justices because she represented the State in many of the cases in her position as Solicitor General of Colorado, prior to her appointment to the bench by former Governor Bill Owens. These recusals are expected to decrease as the cases she participated with work their way through the judicial process. Colorado Supreme Court cases often take two years or more to go from a filing of a petition for certiorari, to issuance of an opinion, and the solicitor general is involved in the process before a petition for certiorari is filed.
A glimpse into voting patterns
The Denver District Court recently declared Governor Bill Ritter's tax freeze unconstitutional, and it seems that he will be quickly appealing the decision. District Judge Christina Habas said the freeze, which generated more than $117 million this year for school districts and indirectly to the state, violates the Taxpayer's Bill of Rights. According to the article, "Ritter said Saturday he is so confident the Supreme Court will reverse Habas' decision that he's assuming the freeze will remain in place as he begins planning next year's budget... Ritter's confidence rests in part on the fact that Habas was appointed by former Republican Gov. Bill Owens. The Supreme Court has just two Republican justices — Nathan Coats and Allison Eid — and five Democrats: Chief Justice Mary Mullarkey, Gregory Hobbs, Alex Martinez, Michael Bender and Nancy Rice. But it's unfair to the court to assume its deliberations are a simple partisan head count. Rice and Hobbs, in particular, are centrists who have joined in some decisions that dismayed Democrats."
Eid and Hobbs on the Civil Rights Initiative
According to RaceBlind.org, three members of the Colorado Supreme Court are using "convoluted, politically motivated reasoning" to prevent the citizens of Colorado from deciding whether that state's voters will be allowed to decide whether affirmative action will continue. This may be coming up for vote in the next elections.
The article in RaceBlind.org references an article from the Rocky Mountain News. According to editor Vincent Carroll, whether a person is for or against the Colorado Civil Rights Initiative, there's no hidden agenda to consider. Simply, it is a ban on government discrimination based on race, sex or the other familiar categories. However, three state Supreme Court justices - Mary Mullarkey, Gregory Hobbs and Alex Martinez - claimed it violated the rule barring a ballot measure from having more than one subject. This "single subject" hurdle was used in the summer of 2006, when the court invoked the same reasoning to invalidate an initiative that would have barred governmental benefits for illegal immigrants (Initiative #55). The language approved by the state title board says “the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” It then permits exceptions related to federal law and court decrees, while defining “state” to include higher education and local government.
Three justices, Nancy E. Rice, Nathan B. Coats and Allison Eid, agreed it was a single subject, while the others mentioned above said it wasn’t (Justice Michael Bender did not participate). The amendment’s opponents claim its language implies that preferential treatment “is simply a subcategory of ‘discrimination,’ ” and they dispute whether that’s the case. Preferential treatment “can certainly involve forms of ‘discrimination,’ ” the litigants concede, but it also “involves a good bit more than that.” In fact, they say, some forms of preferential treatment “disadvantage no one.”
The measure's sponsors disagree with this assessment, as they believe "preferential treatment" is a subcategory of discrimination. As the title board's brief points out, “The United States Supreme Court has long acknowledged the close relationship between laws or actions that discriminate against an individual or a group based upon race, gender, nationality or ethnicity, and those that grant preferential treatment toward an individual or group.”
Denver gun laws stand
Denver's gun laws remained in effect in 2006 due to a divided Colorado Supreme Court that upheld the ordinances on a 3-3 vote. The tie vote failed to give the state, cities and gun groups a clear ruling from the state high court on whether uniform state law overrides local gun ordinances passed by home-rule cities such as Denver.
Denver, which has some of the strictest firearm laws in the metro area, challenged the state legislation as a violation of its authority as a home-rule city. Two Denver district judges ruled that while the state legislation overrode some ordinances, Denver still had the right to regulate assault weapons, so-called "Saturday night specials" and the open carrying of firearms in public. Denver District Judge Joseph E. Meyer ruled in 2004 that Denver's dense population and violent crime rate outweighed the state's need for uniformity in gun laws.
The tie vote resulted when Justice Allison Eid, a former Colorado solicitor general, abstained because she argued the case on behalf of the state when she worked for the attorney general's office. Spokeswoman Kristin Hubbell said the attorney general's office will not appeal the ruling further.
- Colorado Judicial Performance Commission
- Colorado Supreme Court website
- League of Women Voters: Colorado Judicial Polling Report on Voter Knowledge, 2007