Judicial Roundup! What to expect when expecting to be a judge. CO Supreme Court: you can't sue for defamation in Title IX hearings. El Paso judge: "sexual predator" label is not protected speech.
What to expect, when you expect to be a judge.
The Colorado Politics article below details (what I think was) a May 23rd seminar where current Colorado judges/justices gave judicial hopefuls the skinny on what it's like to don the robe.
The article is a laugh-a-minute romp through what our current judiciary and Gov Polis' judicial team think about being a judge.
**As a quick aside and added context: remember that the way judges are appointed in this state is that people apply to be judges to a vacancy committee. This committee, including current judiciary, lawyers, the public, pick three candidates who the governor picks from to become the judge. See the second link below for some added context if you'd like.
Consider the following howler from the article:
"Kara Veitch, the chief legal counsel for Gov. Jared Polis, said she has participated in approximately 400 interviews for judicial vacancies. 'These are really, really hard jobs. Maybe 10-15 years ago, we thought of them as a capstone to your career and a retirement gig. This is not a retirement gig,' she said. Veitch advised applicants to compile endorsement letters from 'a variety of angles' and to highlight their work on cases that illustrate their problem-solving abilities and thoughtfulness — not necessarily the most high-profile litigation. She also told people to respond directly to the questions asked of them, and not to give the 'political answer.' 'You can tell when people are answering the question in the way they think we want them to answer it. These are not political interviews,' she said. 'We’ve had some people come in and say, "I want to be in this job to help advance Gov. Polis' agenda." We are like, "Whoa! That is not this job."'"
Further down the article teases about fewer people applying to be judges, though kind of leaves it there without any firm numbers, or further exploration.
Quoting again:
"[Colorado Supreme Court] Justice Richard L. Gabriel told attendees that fewer people are currently applying to be judges. 'I’m not sure quite why that is. Maybe a matter of negativity out there about public institutions or fear of the workload. The workload is tough, but you learn how to stay on top of it,' he said."
There's probably something to Justice Gabriel's first reason, as my cynical comment about Polis' legal advisor can attest, but I'm not so sure that the distrust plays a big role here. My guess is that it's the latter. That the issue is a perceived imbalance between people's expectations, the money, and the workload.
Putting aside accusations of bias and politics intruding upon the law in the higher courts (appellate and above has been particular hobbyhorse), we need judges--just in the pragmatic sense of throughput for our legal system. Somebody has to make the rulings and write the reports. But if the issue is pay and workload, and the judiciary is trying to meet the needs of judges and the public by staffing more courts (see the third link below), then how are we to fund it? Better work life balance isn't free.
I mean, we can't cut back on our state's social engineering and pet progressive projects right? Certainly not so we could have a functioning judiciary with reasonable (and Constitutionally-guaranteed) trial wait times.
Next thing you know, they'll start talking about taking money away from that stuff to fix the roads!
https://www.coloradopolitics.com/courts/colorado-justices-judges-tell-applicants-what-to-expect-when-applying-for-bench/article_11b01702-cca2-4cfe-b2af-2ad42c47540d.html
https://www.coloradojudicial.gov/supreme-court/judicial-nominating-commissions
https://www.coloradopolitics.com/courts/bill-to-add-15-judges-heads-to-colorado-governors-desk/article_5ff6348e-0054-11f0-9031-8f7c90ab210b.html
Title IX sexual misconduct hearings are "quasi-judicial": another CO Supreme Court two-step.
Just like in the Colorado Politics article linked below, I have to back up and offer you some context to help you understand the Colorado Supreme Court's ruling.
Witnesses in a court proceeding are free to say whatever they'd like without fear of being sued by someone else for defamation. Quoting the article with the link intact:
"Generally, what someone says during the course of judicial proceedings has 'absolute privilege,' meaning their statements cannot form the basis of a lawsuit — even if they are knowing falsehoods."
I'm not sure of the rationale here (nor sure whether this is something that is written explicitly into law or part of our common law tradition via judicial rulings), but I would guess that the thinking was to make sure people feel no restraint or that there be no chilling effect in their testimony. It's a sound concept if you ask me: even though it could encourage disparaging remarks, there is always cross examination and the ability to present witnesses to refute someone else's statements.
The Colorado Supreme Court recently ruled to extend this absolute privilege to what they termed "quasi-judicial" hearings such as Title IX sexual misconduct hearings that schools hold (among a few others). This ruling was in response to an appellate court ruling which allowed someone to sue over comments made in and around a school's Title IX sexual misconduct hearing.
The case that led to this is covered in some detail in the article. I'll leave that to you to read if you'd like. The short version is that a young man who was accused of sexual harassment in high school sued the girls and the parents for defamation based on some statements they made about him (he was never criminally convicted, though he was expelled from school for the alleged behavior, a Federal judge later finding that his rights to due process were violated by the JeffCo school district).
And that brings me to my point here. In the opinion of the court (linked second below) Justice Hart says essentially that the Title IX hearings meet the current legal standard of a quasi-judicial hearing--regardless of the flawed nature of the JeffCo hearing which the young man had (the young man sued, and later won, in Federal court over the lack of due process he received).
Let me run that past you again because this is where the Colorado Supreme Court's patented two-step comes in. Quoting the ruling:
"Our holding today clarifies that these extremely important due process concerns are independent of the assessment of whether a proceeding is quasi-judicial. Just as a judicial proceeding itself can be found inadequate due to a lack of due process, so can a quasi-judicial proceeding. In neither case do we say the proceeding loses its character as judicial or quasi-judicial. Instead, it is fatally flawed for lack of due process. And of course, the scope of absolute privilege does not shield an inadequate proceeding from judicial review for a violation of the accused’s right to due process and cannot protect the accuser from policies to which they are accountable, with school discipline being just one example."
Justice Hart, in answer to someone like me who has concerns about whether or not a hearing was fair or gave both sides due process would say that concerns about due process could always be brought in a court and addressed there.
But if you stop and think it through, that is not really responsive to the full issue raised in this case (nor responsive to concerns like mine).
I said at the top that the absolute privilege in a regular court of law was fair because you can cross examine someone; you can present your own witnesses to counter someone else's statements. By way of illustrating how this is not necessarily what you'd find in an extra-judicial proceeding, let me present you with a quasi-hypothetical based loosely on the controversy underlying this ruling.
Let's say that prior to and during a Title IX sexual misconduct hearing between Joe Smith and I at our school, I claimed Smith was a sexual predator, etc. Further, I knew, and it could be proven that I knew, that these statements were completely and utterly false.
The hearing did not allow for cross examination, nor did it allow me to present any witnesses on my behalf. It was just Joe giving a statement and me giving a statement. This was followed by the hearing officer rendering his ruling.
Sadly for Joe, he got expelled. Frustrated and angry, Joe later took his case to Federal court arguing that this hearing violated his due process rights. The Federal judge agreed, and she vacated the expulsion.
Saying that Joe didn't get due process and vacating the expulsion is not (repeat not) saying anything about my lies. It was all about the process. There is nothing in it that fixes the damage done by my knowingly-false and all-too-public accusations, save for perhaps the school holding a hearing to make me responsible for my lies (which may or may not happen).
If Joe wanted, he could search extra hard for a silver lining and argue that future cases at this school will have the same protections as a court proceeding, but that's cold comfort to Joe. He gets to live with the label I slapped on him. Absent some public (just as public as his expulsion) acknowledgement of what happened, all anyone will remember is that he was expelled for being a sexual predator.
I don't know that I disagree with the reasoning of the Colorado Supreme Court here (see further in the ruling for their thoughts on why they would rather have the law set up their way than the alternative)--that the remedy for due process problems lies in the policies underlying quasi-judicial hearings--but my agreement comes with the caveat that there needs to be a remedy in place in such policies for lies and for violations of due process.
That is no given (as the Colorado Supreme Court seems to assume here).
They've neatly and tidily handled this rather difficult case, but in my view have left the door open to future problems just like these.
**I'm not 100% sure, so don't quote me but I believe the same rule applies to anything said in the Federal legislature.
https://www.coloradopolitics.com/courts/colorado-justices-witnesses-cannot-be-sued-for-statements-in-misconduct-proceeding/article_22394385-d11e-4a6a-9e3b-1c1778997cb2.html
https://www.coloradojudicial.gov/system/files/opinions-2025-06/23SC818.pdf
One more on defamation, but not in the Colorado Supreme Court.
Here comes another case on someone calling another a (child in this case and not sexual as before) predator.
The Rocky Mountain Voice article below gives us the background. Quoting:
"For more than a year, Derrick Wilburn – father, community leader and now an elected school board member – was publicly branded a “child predator” by a vocal district parent. The accusations, repeated at school board meetings, online and even in state legislative testimony, painted him as a man who preyed on children. Wilburn filed a defamation lawsuit in December 2024, seeking accountability. And on April 29, a Colorado judge drew a legal line. El Paso County District Court Judge Gregory Werner denied defendant Bernadette Guthrie’s motion to dismiss Wilburn’s defamation lawsuit. Judge Werner ruled that Guthrie’s accusations went far beyond protected speech under the First Amendment."
I'll leave it to you to read more into the fuss between Wilburn and Guthrie in the story. I have to be honest in saying that I find this one to be, well, bizarre. A school board member read some passages that he felt were objectionable at a campaign event for the school board involving students. One of the students took offense at the things that were read and mom then spent lots of time and energy following the (former candidate, now elected) gentleman around.
I'm on the outside, so maybe I missed something, but this feels like two people on the same side of an issue fighting each other over that very issue. Mom here seems to have gone absolutely, positively, bats**t crazy.
What a waste of everyone's time.
Nonetheless, there a couple of legal points at play which are worth noting to put an end to today's legal roundup. The first is that (unless it is in a court or a quasi-judicial proceeding as per the post prior to this one) accusations of actual criminal conduct are defamation.
Quoting again:
"According to the court order, Guthrie made numerous statements at board meetings and online accusing Wilburn of being a 'sexual predator,' a person who 'preys on children for his own personal gain,' and someone who committed 'crimes against children.' She claimed he should be required to register as a sex offender and also asserted that her daughter was among his victims. The judge rejected Guthrie’s argument that her speech was shielded by the First Amendment. 'Guthrie’s attempt to claim these statements are simply statements of her opinion has no merit,' Werner ruled. 'Otherwise, someone would always be able to avoid liability simply by saying, "well, this is what I believe." In his order, Werner added, 'All of these statements are statements of fact and can be proven to be true or false. To the extent these statements convey the impression that Wilburn engaged in criminal activity, such statements are defamatory per se.'"
The second is that statements made about public figures (and, as a school board member Wilburn is one) have a higher standard to meet for defamation than for ordinary people: one of the standards is that the person saying it must have "actual malice" in mind when making their defamatory statements. This, according to the judge's ruling, was established by the fact that Guthrie continued to make her claims after being told by police that nothing Wilburn did was criminal.
Wow. Just wow. I can't help but wonder if Guthrie will appeal. If I had to bet, I'd say it feels likely she will.