GOVERNOR’S PICKS FOR THE COLORADO SUPREME COURT
Colorado Gov. John Hickenlooper has less than a week to decide on one of three women nominated to fill an empty seat on the Colorado Supreme Court, a decision that will shape the powerful panel for years — if not decades — to come and help define his legacy.
A judicial nominating commission late last month put forth three names for the term-limited Democrat to choose from: Marcy Glenn of Denver, Melissa Hart of Denver and Pattie P. Swift of Alamosa.
One of them will replace Allison Eid, a conservative jurist who left the state’s highest court after she was tapped by President Donald Trump to serve on the Denverbased 10th U.S. Circuit Court of Appeals.
“I’m not sure that’s ever happened before, that the nominating commission has put three women forward,” said Christopher Jackson, an appellate lawyer at the Denver firm of Sherman & Howard who is a close follower of the Colorado Supreme Court. “I think they are all really good candidates, they just have different centerpieces. It will be interesting to see how Gov. Hickenlooper weighs that.”
Though, he said, “I wouldn’t expect there to be a watershed change” in the makeup of the court.
After his latest pick, Hickenlooper will have chosen the majority of the Colorado Supreme Court’s seven members, and this coming choice will add to his impact in shaping the panel amid statewide debates about growth and oil and gas. Not to mention the ongoing friction surrounding the Taxpayer’s Bill of Rights.
Whomever Hickenlooper chooses will become the third woman jurist on the court, whose members serve a two-year term before going before voters for retention and an additional 10 years on the bench. She will also become the sixth of the seven members to be picked by a Democratic governor.
The Denver Post reviewed the application packets of Glenn, Hart and Swift, all of whom declined to speak to the newspaper with their nominations pending, to get a better idea of their prior experience and expertise through the dozens of pages they submitted.
Here is a look at who the candidates are:
Marcy Glenn
Marcy Glenn is a partner at the Denver office of the law firm Holland & Hart, where she has spent her entire career, leading the firm’s division that focuses on civil appeals and state and federal appellate courts across the country.
Her areas of practice are in constitutional law, natural resources law, employment law, commercial litigation, environmental law and intellectual property, and she has represented both public and private entities on a range of issues, from oil and gas to the Rocky Flats Nuclear Weapons Plant in Jefferson County.
In the Rocky Flats case, she helped defend the settlement of plaintiffs who collectively were awarded millions of dollars for plutonium contamination spanning over three decades. In another situation, she represented clients who challenged Colorado’s public school financing system.
She was appointed this year to the governor’s board of ethics and said in her application for the Supreme Court vacancy that she is not active in partisan politics.
“The newest Supreme Court justice must be curious, empathetic, humble, and thoughtful; a disciplined and hard worker with high standards, meaningful experience and good judgment; an engaged listener, a team player; and a leader,” she wrote in her personal statement for the application. “Over a fulfilling career in private practice, I believe I’ve grown into these qualities.”
Glenn completed her undergraduate studies at Dartmouth College and received her law degree from the Northeastern University School of Law in Boston. She has also chaired the Colorado Supreme Court’s Standing Committee on the Colorado Rules of Professional Conduct, and presented before the U.S. Supreme Court.
Each candidate was asked to submit a legal writing sample as part of their application, and for hers, Glenn included an amicus brief she wrote while representing the state board of the Great Outdoors Colorado Trust Fund in an eminent domain case before the Colorado Court of Appeals.
At issue was whether GOCO funds could be used as part of projects in which other money was used in eminent domain purchases, despite rules barring GOCO dollars to pay landowners for property acquired through condemnation.
“The court must apply the eminent domain exceptions consistent with this plainly stated intent,” she wrote. “A broad interpretation of the exceptions, as precluding GOCO funding of any part of any project in which any recipient acquired property through eminent domain using NONGOCO funds, would frustrate this intent.”
Melissa Hart
Melissa Hart is a Harvard-educated professor at the University of Colorado Law School whose work centers on the constitutional law, employment discrimination, legal ethics and legal professionalism.
This isn’t her first time being nominated for an open Colorado Supreme Court seat (her name was floated before, in 2015).
Hart, who is known for her liberal-leaning stances, clerked for Justice John Paul Stevens on the U.S. Supreme Court and practiced law for several years in Washington, D.C., including as a trial attorney at the Department of Justice, before becoming an educator.
”She has a very similar professional background to Justice Eid,” said Jackson, the attorney and Colorado Supreme Court observer.
However, they are seen as polar opposites, politically, with Eid on the right and Hart on the left.
Hart has spent her time as a professor focusing on procedural rules and how they affect case outcomes, specifically when it comes to access to justice.
“Through my work in legal ethics, I have increasingly focused my work on addressing the significant lack of legal services for poor and moderate income people,” she wrote in her application. “The reality of our legal market today is that more than 70 percent of individuals could not afford to hire an attorney to address important legal needs. This affordability of lawyers for most people is a crisis.”
She has taken on some pro bono cases in recent years, specifically in the realm of marriage and adoption. In 2013 and 2014, she also represented clients requesting Deferred Action for Childhood Arrivals, or DACA, status and worked on an amicus brief defending the Colorado Civil Rights Commission’s decision to rule against a Lakewood baker who refused to make a cake for a same-sex couple because it was against his religious beliefs.
The latter is now before the U.S. Supreme Court.
“If I receive this appointment, I will work tirelessly as a leader and model of professionalism on the bench and as a public citizen devoted to the rule of law, to public confidence in the judiciary and to an effective, fair, and accessible system of justice,” she wrote.
For her writing sample, Hart submitted a brief she filed in a case still before the Colorado Supreme Court. In it, she argued that an attorney defending a child against murder charges was ineffective because that attorney was being paid by the child’s father, a victim in the case.
“(The child’s) trial counsel was operating under an actual conflict of interest that adversely affected his representation of his client and as such constituted ineffective assistance of counsel,” she wrote on behalf of a group of law professors. “The conflict did not result, as characterized by the Court of Appeals, simply from the fact that the counsel was being paid by a third party. … Because of this conflict, (the boy’s) counsel never conducted any investigation into the possibility of using the abuse and turmoil in (his) family as a defense to the charges of first-degree murder for which he was ultimately convicted.”
Pattie P. Swift
Pattie P. Swift is the chief judge in the 12th Judicial District, which covers south-central Colorado.
She is the only of the three nominated to the Colorado Supreme with prior experience as a jurist, and the only one with experience in the complex realm of water law. She is also the only nominee who lives outside the Denver metro area.
“The particular expertise that she brings, besides being a trial judge, is that she is also a water judge,” Jackson said. “The Colorado Supreme Court has direct appellate jurisdiction over water cases, so that means (it) hears a lot of water law cases and decides a lot of water law issues.”
The state’s high court has been without a water-law expert since the end of Justice Gregory J. Hobbs Jr.’s term, meaning the University of New Mexico School of Law-educated Swift, if chosen, could fill that niche.
In her application, Swift highlighted a 2005 case she worked on earlier this year, centering on child abuse resulting in death. In that case, she issued a 139-page decision in which she ordered a new trial because of the inefficiency of the defendant’s lawyer.
Swift found that the attorney failed to investigate other potential causes of the child’s death, specifically a fall from his 6-foot-tall babysitter’s shoulders, and prosecutors ultimately decided not to retry the case.
When asked if she would participate in partisan politics if chosen for the Colorado Supreme Court, she put down “not applicable” as her answer. She served as acting water referee for Colorado’s Water Division 3 from 2010 to 2011. Since then she has been a water judge in the division.
For her writing sample, Swift included a ruling that overturned the convictions of a man found guilty of violating state hunting laws. She found, among other things, that a lower court had given jury instructions in error.
“After working as a district court judge for fifteen years, I am ready for a new challenge,” she wrote. “… The qualities I would bring to the Colorado Supreme Court are those I have demonstrated throughout my career: honesty, fairness, dedication to public service, intellectual rigor, willingness to consider all sides, clarity of thought and writing, common-sense, and humility. In addition, I would bring the leadership skills I have honed as a Chief Judge and the wisdom I have gained through 28 years as a trial judge.”
She added: “Finally, I would bring a different perspective formed through living and working outside the metro area in the culturally and economically diverse San Luis Valley.”