The Colorado Supreme Court announced this week that it will hear a case questioning whether an El Paso County judge who was the victim of a roadside shooting should have recused herself from presiding over a road rage trial with similar circumstances.

At least three of the court’s seven members must agree to grant an appeal.

The justices narrowly turned down two additional cases: a criminal appeal about the effect of a defendant’s lengthy failure to appear on her right to a speedy trial, and a proposed class-action lawsuit alleging Mcdonald’s locations in southwest Colorado prevented employees from taking rest breaks.

The judge who was shot at

In February 2017, Khalil Jamandre Sanders shot and injured the driver of another car in an apparent act of road rage. An El Paso County jury found him guilty of assault, menacing and the illegal discharge of a firearm. He is serving 32 years in prison.

During jury selection, then-district Court Judge Barbara Hughes took the parties aside and said she “would be remiss” if she did not tell them something: A few years prior, she was driving along Nevada Ave. and saw people fighting in the street. She

honked at them and someone shot at her car.

“I heard pop, pop, pop, ping, and it hit the spoiler of my car. I had to duck,” Hughes recalled. “There was a case report, I guess, a police report, but there was never any filing of any charges. There was never any person that was identified as the shooter that did the crime.”

Sanders’ attorney requested that Hughes recuse herself, but she denied the motion, asserting she had “no interest in the outcome, no interest in either party.”

On appeal, Sanders argued Hughes needed to recuse under the constitutional guarantee of due process, under state law, under the rules of criminal procedure and, finally, under the rules of judicial conduct.

A three-judge panel for the Court of Appeals found most of those provisions applied to judges who were actually biased against a litigant. The rules of judicial conduct, in contrast, prohibit judges from hearing cases when a “reasonable observer” might have doubts about whether a judge is impartial.

However, “Sanders has not cited, and we have not found, any Colorado precedent holding that an appearance of bias arises whenever a judge presiding over a criminal case has experienced criminal conduct similar to the conduct at issue,” wrote then-judge David Richman last year.

“We find it significant that the judge was not actually shot or injured in the prior incident, and there was no indication that she was the target of the shooter or that shots were fired due to road rage.”

Sanders turned to the Supreme Court, arguing the proper question was whether, under the total circumstances, there was an “unconstitutional potential for bias.”

“Here, a reasonable observer might have doubts about the judge’s impartiality, based solely on the fact the judge and the victim both endured a very frightening experience, regardless of any differences between the two incidents,” wrote public defender Tracy Renner.

The Supreme Court will consider whether Hughes was disqualified from presiding over the case and, if so, whether it must reverse Sanders’ convictions. The case is Sanders vs. People.

The missing defendant

Arapahoe County prosecutors charged Jennifer Soderlund with violating a protection order, also known as a restraining order, in August 2020. She failed to appear multiple times before finally entering a not guilty plea on March 8, 2021.

The U.S. Constitution gives criminal defendants the right to a speedy trial. Colorado has interpreted that guarantee to require the government to bring defendants to trial within six months of a not guilty plea.

The Legislature has provided one consequence if that does not happen: dismissal of the charges and a bar on further prosecution.

On March 8, County Court Judge Michael Roche determined the speedy trial deadline was Sept. 8, but, for reasons that were unclear, he did not set a trial date — planning to do so instead at an April motions hearing. But Soderlund did not appear then and was absent for nearly 300 days, resurfacing before the court in January 2022.

At that time, the defense moved to dismiss the case because the government had failed to bring Soderlund to trial in time. County Court Judge Melina Hernandez agreed and granted the motion.

The prosecution appealed to District Court Judge Elizabeth Beebe Volz, but she reached the same conclusion.

“At first blush, it appears Defendant absented herself from trial and was the cause of the delay,” she wrote last August. “The trial court is responsible to ensure a defendant’s speedy trial date is not violated. ... The Court failed to protect the statutory right of the Defendant in not timely setting the trial date.”

The 18th Judicial District Attorney’s Office appealed to the Supreme Court, arguing Soderlund’s own failure to appear should be taken into account.

“While a defendant has no duty to bring herself to trial, the defendant’s presence is still necessary to keep the case proceeding forward,” wrote Deputy District Attorney Laura Wood.

The Supreme Court declined to hear the appeal, but Chief Justice Brian Boatright and Justice Carlos Samour Jr. indicated they would have reviewed whether a defendant can “engineer dismissal of her case by failing to appear.”

The case is People v. Soderlund.

Breaks for fast food workers

In December, the Court of Appeals permitted three lawsuits against various Mcdonald’s and Wendy’s franchises to proceed as class actions. The plaintiffs, who are former employees, alleged the restaurants failed to permit 10-minute, paid rest breaks for every four hours of work, as state regulations require.

An appellate panel decided it was possible for those claims to proceed as class actions. In the lawsuit against Mcdonald’s, they cited data, drawn from employee timesheets, showing that after the lawsuit was filed, employees at two Durango and Cortez restaurants missed 93% fewer rest breaks.

It is possible, wrote Judge Terry Fox, a jury could believe employees were choosing not to take the breaks the law entitled them to.

“But a jury could also reasonably conclude that managers were unable or unwilling to authorize such breaks because of staffing decisions,” she continued. “This dramatic shift supports an inference that the employees were probably not waiving their rest breaks to begin with.”

The appellate panel determined a second set of claims, regarding missed meal breaks, was not appropriate for a class action.

Both the Mcdonald’s operator and the plaintiff appealed to the Supreme Court. The operator argued timesheets alone should not be the basis to find a class of similarly-situated employees exists, and the panel’s opinion created an obligation to “micromanage” employees’ breaks.

“This case also reflects a growing trend in Colorado wage and hour law: the use of class action lawsuits to embroil small businesses across the state in expensive, time-consuming litigation, and the increasing uncertainty for employers and employees as to their rights and obligations,” wrote attorney Micah Dawson.

The plaintiff’s lawyers countered that, if the Supreme Court was inclined to review the Court of Appeals’ decision on rest breaks, it should also consider reversing the part of the opinion about meal breaks.

Justices Melissa Hart and Maria Berkenkotter indicated they would have granted an appeal for all issues.

The case is Colorado Hamburger Company, Inc. v. Hicks.