Colorado’s Supreme Court is being asked to decide whether judges have the power to review personnel decisions involving judicial employees, a rare case in which different parts of the judicial branch are arguing for opposite interpretations of existing rules.

During oral arguments on Wednesday, the state’s justices heard that judicial employees are legally different from other state workers. Granting the right to appeal a termination decision to the courts would place their employment status in question for years on end when personnel rules are already clear about when such decisions are final.

On the other hand, the Supreme Court wondered why this particular avenue for challenging disciplinary decisions should not apply to an entire category of workers simply because the court system is their employer.

“Every single other government employee does get judicial review,” said Justice Melissa Hart. “I guess I’m still not persuaded why someone who happens to work for the Judicial Department should therefore have no judicial review.”

Reportedly the first case of its kind to ever reach the Supreme Court, the 18th Judicial District is seeking to challenge a decision of the Colorado Judicial Department Personnel Board of Review, which overturned the district’s firing of parole officer Abbey Dickerson. So far, the lower courts have refused to reach the merits of the judicial district’s claim, finding they had no authority to even hear the appeal.

In a further twist, both entities are represented by the Colorado Attorney General’s Office and are trying to persuade the Supreme Court — which created the personnel system — about what it actually meant when it created the rules.

“What’s broken here? What are we trying to fix?” asked Justice Carlos A. Samour Jr.

“I don’t think anything’s broken here,” responded Senior Assistant Attorney General Christopher J.L. Diedrich, defending the decision of the personnel board amid the 18th Judicial District’s challenge. “The system worked just fine.”

Dickerson was a probation officer in the 18th Judicial District, which spans Arapahoe, Douglas, Elbert and Lincoln counties. In December 2018, she disclosed personal information on Facebook about a client on probation, although she did not identify him by name. The probation office, which is part of the court system, determined Dickerson’s post violated four policies related to client privacy and confidential information.

In February 2019, the chief probation officer for the judicial district terminated Dickerson’s employment, finding her misconduct significant and her failure to take responsibility made him lose confidence in her “ability to honor the high standards for personal integrity and professionalism.”

Pursuant to the Judicial Department’s personnel rules, Dickerson appealed. From there, the process somewhat resembled a civil trial, in which a retired judge served as a hearing officer over proceedings that featured witnesses, arguments and evidence. The hearing officer in Dickerson’s case agreed discipline was necessary, but believed the appropriate consequence for Dickerson was a 90-day unpaid suspension.

The 18th Judicial District appealed to the personnel board, featuring eight members appointed by the chief justice — three of whom are judges. A majority of the board agreed with the decision to reduce Dickerson’s punishment to a suspension.

The 18th Judicial District insisted the outcome was erroneous and filed a complaint in Denver District Court seeking to reinstate Dickerson’s termination. After a trial judge determined he did not have jurisdiction, the judicial district turned to the Court of Appeals. There, a three-judge panel noted the Colorado constitution grants the Supreme Court the authority to appoint administrative personnel, with state law further empowering it to create procedures for removing employees.

Those procedures, in turn, specify that personnel board decisions are final, with “no further right to appeal.”

“These strong, clear disavowals of further appeal rights would be undermined (indeed, read out of existence) by allowing for district court review,” wrote Judge Jerry N. Jones in upholding the dismissal, adding that letting the lawsuit proceed would also undermine the Supreme Court’s administrative authority.

The 18th Judicial District insisted that could not be the case because trial courts are able, under the state’s civil rules, to review decisions of “any governmental body” or “lower judicial body.” The personnel board qualifies as both of those, the district argued.

“Government employment matters are handled in the courts all the time,” explained Assistant Attorney General Michael Kotlarczyk. “This would be the first time a public board would be held to be immune” from judicial review.

The personnel board and Dickerson argued the personnel rules were clear when they said the board’s decisions are final and unappealable. Diedrich pointed out the State Board of Education has similar final authority over charter school denials, and the Supreme Court recently agreed to interpret whether those appeals similarly can proceed in front of judges.

In large part, the board defended the unreviewable nature of its decisions by relying on its unique status and processes — using judges and quasi-judicial procedures to decide appeals.

“It’s not that there’s no judicial review. It’s simply that it’s an alternative path of review within the Judicial Department that this court has provided. What’s broken is this challenge,” Diedrich said.

But some members of the Supreme Court were skeptical that, just because Dickerson’s personnel proceedings resembled a civil case, they were an acceptable substitute to actual judicial review.

“Really the only difference here that you’re hanging your hat on is the fact that there are judicial officers involved in the administrative review,” observed Justice Monica M. Márquez.

Justice Maria E. Berkenkotter added that if Dickerson and the state board prevailed, that would mean her suspension would be upheld instead of the termination. But if the tables were turned and an employee were seeking judicial review of a harsher punishment, the absence of court intervention would mean upholding a possible termination.

“When the facts are reversed, we would be limiting the right of review of the employee,” she said.

Still, the justices were cognizant that the 18th Judicial District’s challenge had now stretched three years beyond Dickerson’s victory before the personnel board. 

“This is the worst possible way to operate a personnel system,” argued her lawyer, Barry D. Roseman, “where Ms. Dickerson or her counterpart would have to wait years before knowing whether or not they’re gonna be reinstated.”

The case is Colorado Judicial Department v. Colorado Judicial Department Personnel Board of Review.