DISQUS

Ugly Ernie · 2 years ago

Justice Eid didn't work on criminal cases in the AG's office I look forward to reading your analysis; thank you for it.

One quick note about a common misconception:  Justice Eid did NOT work on criminal cases during the 5 minutes she was employed by the AG's office.  In fact, she had very little direct involvement in any appeals.  Her decision to recuse from all cases handled by the AG's office while she was there is an (over) abundance of caution, given that she didn't work on (or know anything about) the overwhelming number of appeals going on in the office.  But, it sure has lightened her work load.

Andrew Oh-Willeke · 2 years ago

I don't know precisely which cases she worked on. I suspect that the notion is not that she personally worked on criminal appeals or trials in a direct sense, or that she was aware of all the details of strategy in every case. 

Instead, I suspect the idea is that, as solicitor general, where she was responsible for the office that decided which, of all pending appeals in which "the People" or the State of Colorado was a party, ought to be sent to the Colorado Supreme Court and argued there.  As someone who has been an attorney of record (sometimes directly and sometimes indirectly through the AG's office) for a litigant in those cases, she would be improper in ruling on those cases.  Since no one can know precisely which of those cases were seriously considered, and which were not, without breaching attorney-client confidentiality, it would create an appearance of impropriety for her to issue an opinion on any of them.

Of course, this shouldn't apply to cases that were being handled by district attorneys at the trial level prior to her appointment, as the D.A.'s office in Colorado is not part of the Attorney-General's office in Colorado (in contrast, some states, like Florida, vest all prosecutions in a state attorney general's office).

Also, I want to specifically disavow any implication of laziness or improper motive to Justice Eid's frequent non-participation in cases. 

Her decision is the right and proper thing to do.  She should be applauded for the high ethical standard she has set.  I have no doubt that the temptation for someone like her is to plunge into helping decide important legal issues in a manner that she believes to be correct, rather than to reduce her work load.  But, she has resisted that temptation, despite the fact that there is really little anyone in the system could have done to second guess her had she not done so and despite the fact that it must be an uncomfortable situation to be in to be on the court and yet not be involved in half of its cases.

Ugly Ernie · 2 years ago

Thanks again I enjoyed your post.  Although the statistics are based on small numbers (and, thus, drawing conclusions from them is problematic), I think your conclusions about the justices are pretty well accepted by those who follow the court.  Justice Coats seems to distinguish himself as the lone dissent or concurrence relatively often; perhaps that will change as Eid decides more cases.  Also it's pretty clear from his writings that Justice Coats isn't very fond of stare decisis.  Justice Eid may be the same way, given that Justice Thomas has a well-known disdain for stare decisis.

Ugly Ernie · 2 years ago

Hmmm As for criminal cases (which are the great majority of appeals handled by the AG's office), the solicitor general (Eid's former position) does not, as a rule, decide which cases are appealed to the supreme court.  And even if Eid had made such decisions, only a very small number of those cases would have come before her after she joined the court.  In fact, the vast majority of cases from which she has recused were at the court of appeals level or the district court level during the time she was in the AG's office.  Thus, she wouldn't have had any occasion to decide whether they should be appealed to the supreme court. 

Ugly Ernie · 2 years ago

clarification The vast majority of cases from which Eid has recused were at the district court level or the court of appeals level (PRE-decision) during her time at the AG's office.  Thus, she wouldn't have had any occasion to consider whether they should be appealed to the supreme court (the alleged basis for her recusal).

Andrew Oh-Willeke · 2 years ago

The game plan is to do another study with the complete data set for the post-Eid court from April 17, 2006 to the end of December, 2007 early in 2008. 

I did a similar analysis in the summer of 2006 at Wash Park Prophet with the complete data set as of that date, which produced a similar conclusion, but I didn't bring in the data from summer 2006 to December 2006 combine the three periods into one data set this time, because it takes multiple computer searches to do so as the Court took down its 2006 advance sheets from its website.  This would take more time the story deadlines allowed this time around.

Also in the game plan are articles on individual judges based upon the decisions they write themselves, but that will probably be in law review or Colorado lawyer forums, rather than for CoCo, as the legal issues may be too nuanced to make interesting reading for non-lawyers.

But, if we get a few more days with no published opinions, you can expect a similar statistical analysis of dissents and concurrences in the Colorado Court of Appeals by judge, although it will not have the same cluster analysis of coalitions in every possible three justice combination.

Ugly Ernie · 2 years ago

Great. I look forward to those analyses.

If past practice is any indication, the supreme court won't issue decisions again until September.  The court of appeals will likely keep to its schedule of releasing published opinions on every other Thursday.  So, get to work!  :-)

mudshark · 2 years ago

Great post Very informative and enjoyable reading.

Keep up the good work!