Colorado Supreme Court

The Court principally handles certiorari petitions. Certiorari petitions ask the Supreme Court to grant an additional review of a case. The primary review [appeal of right] was either done by:

• Colorado Court of Appeals in appeals from courts of general jurisdiction [District Courts], or
• Courts of general jurisdiction [District Courts] in appeals from courts of limited jurisdiction [County or Municipal Courts].

Only a small fraction of certiorari petitions are granted by the Colorado Supreme Court. From petitions filed in 2015 and 2016, only 6% of all cases were granted an additional review.[1] It takes three of the seven justices to vote in favor of a certiorari petition for it to be granted.[1]

In addition, the Colorado Supreme Court has jurisdiction over direct appeals in cases where a trial court finds a law unconstitutional, in death penalty cases, in water law cases, in certain election cases, in interlocutory appeals (i.e., appeals in the middle of a case) in certain matters of exceptional importance for which an ordinary appeal is not a sufficient remedy, and in certain other cases.[2]

The Colorado Supreme Court also has original jurisdiction over attorney discipline proceedings, over advisory questions presented by the state legislature or the state attorney general, and questions referred to it by the federal courts. Furthermore, the Colorado Supreme Court has general supervisory and budget authority over the judicial branch, the court rule making process, and the regulation of attorneys. Finally, the Colorado Supreme Court makes appointments to a number of boards and commissions, which often has the effect of providing a tie breaking member in situations where the other appointees are equally divided on partisan lines.

The current Colorado Supreme Court's membership, and the date each Justice was appointed, is as follows:

When a vacancy on the court occurs, a commission established by the state constitution reviews submitted applications.[4] The commission submits three names to the Governor. The Governor of Colorado then has 15 days to select the next justice from that list.

The justice selected serves a provisional two-year term before facing a retention election. The voters then chose whether to retain or not retain the justice. If the justice is retained, they go on to serve a full 10-year term before the next retention election.

If a justice is not retained, the appointment process starts again. However, no appellate judge has ever lost a retention election since the system was put in place in 1966. The Justices are not elected as partisan officials, although they are initially appointed by a partisan elected official.

In 2006, an effort to change this system of retaining judges by initiative was rejected by voters, in part due to a campaign against the initiative which had strong support from both Democratic and Republican members of the Colorado Bar Association.[5]

The chief justice is selected by the justices from amongst themselves.

The pay is set by the legislature in the yearly budget. The budget year in Colorado starts on July 1.

• Chief Justice – $192,256
• Associate Justice – $188,151

• Chief Justice – $186,656
• Associate Justice – $182,671

• Chief Justice – $181,219
• Associate Justice – $177,350

• Chief Justice of the Supreme Court earned $176,799 per year.[8]

• Chief Justice – $125,656
• Associate Justice -$122,972

• Facts: The Petitioners Hedges and Briggs brought a proposed Initiative that would repeal the Taxpayer's Bill of Rights (TABOR), Colorado Constitution Article X, Section 20.[19] The Title Board found the initiative violated the Colorado constitution's single subject clause for a ballot initiative.[20]
• Issue: Did the Title Board make a mistake in finding the ballot initiative is more than a single subject?[21]
• Decision: Five of the seven justices found the Title Board did make a mistake. Justice Gabriel wrote the decision; Chief Justice Coats, and Justices Hood, Hart, and Samour join. Their reasons included:[22]
  • 1. The initiative only has one objective, the repeal of TABOR. The subjects of the initiative are connected and its subject matter is properly connected.
  • 2. There is nothing in the initiative that could be read to hide something, or pose a risk of surprise on the voters.
  • 3. The initiative was written simply and plainly.
• Analysis: Prior case law, determining that the repeal of a constitutional provision with multiple subjects violates the single subject clause, is not controlling here for a few reasons:
  • 1. In re Proposed Initiative 1996-4, 916 P.2d 528, 533 (Colo. 1996) only mentioned this principal in dicta, meaning that holding was done as a hypothetical and was not in resolving the case at hand.[23]
  • 2. All other cases citing that holding all referred back to the Proposed Initiative case without further analysis, or its analysis was again in dicta.[24]
• Dissent: Justice Márquez writes a dissent and Justice Boatright joins.
• Holding: An initiative that repeals a constitutional provision with multiple subjects does not violate the constitution's single subject clause so long as it passes the standard single subject test:[25]
  • 1. It effectuates one general objective or purpose;
  • 2. Does not treat incongruous subjects in the same measure;
  • 3. Comprises subject matter that is necessarily and properly connected;
  • 4. Contains nothing surreptitious or hidden; and
  • 5. Presents no risk of surprise or fraud on voters.

• Facts: The Respondents proposed a new rule to the Colorado Oil and Gas Conservation Commission in 2013. The rule required the commission to only grant new drilling if it would not impair the environment. The commission determined it did not have the statutory authority to grant such a rule. On review, the Denver District Court overruled the commission. The Court of Appeal's (Case 2016CA564) then over ruled the District Court and agreed with the Commission's decision.
• Issue: Did the Commission have the legal authority to approve the Respondent's proposed rule?
• Decision: The unanimous opinion was written by Justice Gabriel. It found three reasons the Commission's decision should stand.
  • 1. The Court has a limited role in reviewing a decision by the Commission not to implement a new rule.
  • 2. The new rule would run counter to the authority given to the Commission by the State Legislature.
  • 3. The Commission was already working with another agency to fix the concerns raised by the Respondents.
• Holding: The Supreme Court upheld the Court of Appeals' decision, reversed the Denver District Court's decision, and upheld the decision of the Colorado Oil and Gas Conservation Commission.

• Facts: In 2012 the City of Aspen implemented a $.20 fee per bag at grocery stores. The city wanted to reduce waste and encourage citizens to bring reusable bags.
• Issue: The issue was whether the levy was a tax or a fee under the law. A tax requires voter approval under the TABOR amendment in the Colorado constitution.
• Decision: The majority opinion was written by Chief Justice Rice. She and Justices Márquez, Gabriel, and Hart determined the amount was a fee because it was not levied to raise money for the city and had a specific purpose for the funds.
• Dissent: Justices Coats, Boatright, and Hood dissented.
• Holding: The decision upheld the unanimous decision by the Colorado Court of Appeals, Union of Taxpayers v. Aspen, 2015COA162.

• In 1992, Colorado voters approved an amendment to the state constitution, Amendment 2, which forbade any political subdivision within Colorado from taking any action to recognize homosexuals as a protected class of people. In 1993, a trial court issued a permanent injunction against the amendment, and the Colorado Supreme Court agreed, noting the amendment subject to "strict scrutiny" under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and remanded the case back to the trial court to find if it could withstand strict scrutiny. The trial court concluded it could not, and the Colorado Supreme Court once again agreed in a 2–1 decision. The case was appealed to the U.S. Supreme Court, which affirmed the Colorado Supreme Court in a 6–3 decision, though by applying rational basis review instead.[26]

In January 2021, the Colorado Supreme Court made a ruling to retroactively recognise common-law same-sex marriage.[27]