Another Conversation with Justice Berkenkotter


We first caught up with Justice Berkenkotter in January 2021 when she was just starting her appointment to the Colorado Supreme Court. Justice Berkenkotter has the distinction of being the first (and so far, only) justice to begin her tenure on the Court during the Covid-19 pandemic, and as a result, has had some unique experiences as she became a new justice. She was kind enough to spend some time with me reflecting on her first months on the Court.



To start, Justice Berkenkotter stressed that there is a lot of work and a very steep learning curve when joining the Colorado Supreme Court, which is saying a lot coming from someone who was no stranger to holding a weighty judicial role and carrying a high workload from her time as a District Court Judge (2006 – 2017) and the Chief Judge on the 20th Judicial District from 2013-2017. Justice Berkenkotter likened the experience of being a new justice to running at a very high RPM. In addition to attending conference and oral arguments within her first ten days on the Court, she also authored her first opinion that was released on February 16, 2021, a scant six weeks after she joined the Court.[1] While Justice Berkenkotter did her best to prepare before officially starting as a justice, she noted that a not-insignificant amount of case material was not publicly available (and therefore not accessible to her prior to officially being a Supreme Court Justice) and that getting ready for those first oral arguments over only a few days was a real challenge.


While the cases that come before the Colorado Supreme Court are very interesting, Justice Berkenkotter observed that they also are, not surprisingly, very hard cases. Because of the certiorari petition process and the Court’s stance against granting discretionary review simply to correct an isolated erroneous decision, the majority of the cases that come before the Colorado Supreme Court are issues of first impression or where there are conflicting lower appellate rulings. Through this self-selection process, the Court is inevitably dealing with hard cases. And unsurprisingly, reviewing the substantial case files in preparation for oral argument takes a significant amount of time, especially for a new justice.



Justice Berkenkotter spoke highly of her judicial colleagues, reflecting that she has found the other justices to be extremely supportive, generous with their time, and thoughtful across the board. Justice Berkenkotter also emphasized that she has personally benefited greatly from having significant support from her friends and family through the entire process. This support hasn’t just been metaphysical, and has included practical (but extremely important) displays like cooking dinner and setting up the programable coffee maker so that there is a fresh pot of insanely strong coffee every morning at 5:37 a.m.


Oral arguments were being held over Webex from the time Justice Berkenkotter first started until June 2021. But now oral arguments are back in person and Justice Berkenkotter has found it tremendously refreshing to be in the courtroom. Currently, Colorado Supreme Court oral arguments are conducted with the justices wearing masks, as are those in the courtroom arguing before them. With the exception of the microphone “mitten” being changed out by each speaker, oral argument proceedings are carrying on much the same as they did in pre-pandemic days.



Law clerks were working remotely when Justice Berkenkotter first started, but returned to being in chambers in May 2021. Justice Berkenkotter likened the law clerks’ return as feeling as though the Court was coming back to life and praised the positive energy they infuse in chambers. Justice Berkenkotter was fortunate to start her tenure on the Court with some very experienced law clerks, with her clerks coming from the Court of Appeals and retiring Chief Justice Coats.


Justice Berkenkotter noted that the clerk situation on the Colorado Supreme Court feels very different from when she was a judge on the trial court. As a justice, she is fortunate to now have three clerks exclusively for her chambers, while as a judge she was lucky to even have one dedicated law clerk or an occasional intern passing through. The additional clerks are able to provide substantially more work, but also require Justice Berkenkotter to embrace more of a managerial role, taking on tasks such as ensuring work assignments are evenly allocated between everyone in chambers and helping her clerks to grow and develop themselves as lawyers.


When asked about how it was transitioning from being a single judge presiding over a case to now being one of seven justices, Justice Berkenkotter responded that she found it fascinating and likened the experience as going from being an only child to now having an interesting mix of siblings. Justice Berkenkotter highlighted that the role of justice is not for everybody, and that the justices don’t always agree on an issue or case outcome. But the Colorado Supreme Court is a very collegial court, and disagreements are always done in a genuinely respectful way. Critically, Justice Berkenkotter observed that it is not surprising that reasonable, thoughtful people can disagree about really hard cases. She values the fact that these disagreements aren’t taken personally.


Justice Berkenkotter noted that as a new justice, one of the hardest things is knowing when to dissent. She explained that it doesn’t make sense to dissent every time. Rather, Justice Berkenkotter feels that you want to write dissents when the writing is worth doing, with the hope that you are leaving breadcrumbs for future courts or courts in other jurisdictions to someday follow. Justice Berkenkotter authored her first dissent in April 2021 in People v. Vidauri, 2021 CO 25,[2] which was joined by Justice Márquez and Justice Hart.


Justice Berkenkotter is keenly aware that these are very difficult times for the trial courts and for lawyers and litigants. When the pandemic began, the trial courts had to figure out a completely new way of doing business overnight. Chief judges, judges, staff, and lawyers all worked tirelessly to keep our many courthouses around the state open—in person and virtually. And, as COVID-19 infection rates have moved up and down in various jurisdictions over the past nineteen months, that need for constant innovation to adapt to each county’s (not just each jurisdiction’s) changing local public health orders, has not changed. Justice Berkenkotter is concerned about the toll the pandemic continues to take on judges, staff, lawyers, and litigants as the trial courts work though the tsunami of backlogged jury trials and cases. She is also mindful that access to justice (or lack thereof) disproportionately affects already-marginalized individuals. Justice Berkenkotter hopes the Colorado Supreme Court can continue to help and support trial courts dealing with all of these challenges, through the expansion of the senior judge program, ongoing IT support, and beyond.


In conclusion, Justice Berkenkotter emphatically added that she loves being on the Colorado Supreme Court and has no regrets on her decision to become a justice. While not necessarily a role for everybody, it is a good role for her.


Colorado Supreme Court oral arguments are videotaped and broadcast live (and had been long before the pandemic began), with the oral argument schedule and video feed readily available on the judicial website.[3] Oral arguments are also generally open to the public and are held in the Colorado Supreme Court courtroom at 2 East 14th Avenue, Denver.

 

[1] People in Interest of A.M., 2021 CO 14. Text of this case can be found here: https://law.justia.com/cases/colorado/supreme-court/2021/20sc187.html. [2] The text of the case can be found at: https://law.justia.com/cases/colorado/supreme-court/2021/19sc933.html. [3] https://www.courts.state.co.us/Courts/Supreme_Court/Oral_Arguments/Index.cfm

 

Marty Whalen Brown is a Staff Adjudicator at the Office of Appeals in the Colorado Department of Human Services. She holds a J.D. degree from the University of Colorado Law School and clerked at the Office of the Presiding Disciplinary Judge under the Colorado Supreme Court after graduating.

89 views0 comments