Denver Bar Association
January 2007
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Burritos, Sandwiches and Cigarettes
Public perception of “controversial” court decisions


by Paul Chan
DBA President


In the week that followed November’s election and the aftermath of the fight over Amendment 40, we may have found it refreshing that it seemed the legal issue receiving the most coverage by the press was a Massachusetts trial court’s decision that a burrito is not a sandwich. The dispute was over a shopping mall lease provision, where Panera Bread Company sought to keep a Qdoba Mexican Grill from invading its turf. The newspapers took great delight in quoting the expert opinion of Cambridge chef Chris Schlesinger, who said in an affidavit: "I know of no chef or culinary historian who would call a burrito a sandwich. Indeed, the notion would be absurd to any credible chef or culinary historian."

The following week, Judge Lily Oeffler of the District Court in Jefferson County found herself in the media’s spotlight for her ruling in a dispute between a Golden couple, Colleen and Roger Sauve, and their condominium’s homeowners association. Judge Oeffler upheld the HOA’s rule that included the couple’s cigarette smoking was a "nuisance," and effectively barred them from lighting up in their home.

I found it most interesting that these cases received much attention at all. At first glance, these two cases involving fairly straight-forward interpretation of document language do not seem to be the stuff of national attention. But my mistake seems to be one common for lawyers. We can too quickly overlook the impact of decisions like these on the lives of the individuals, focusing on the basis for the ruling and the process involved.

It would be more legally accurate to state that Judge Oeffler declined to invalidate the HOA rule, because it was not arbitrary, capricious or otherwise in violation of Colorado’s laws regulating these covenants. The Denver Post, however, reported this case as the judge allowing the condo association to "outlaw" cigarette smoking, and the Rocky Mountain News stated that the association got "the backing of the judge" in prohibiting cigarettes. Even the Massachusetts case became "a culinary ruling" over a "burrito brouhaha," according to The Boston Globe.

Unfortunately, these were the same kind of exaggerations and inaccuracies that the proponents of Amendment 40 used in their attempts to impose term limits on judges. They raised a hue and cry over difficult Supreme Court rulings, suggesting that the court supported illegal immigration, sanctioned the marriage of 12-year-olds, and favored leniency for murders. Given a public expecting no more than sound bites and campaign slogans, we were ill-equipped to explain the intricacies of the single subject rule, deference to the legislature and prejudicial jury instructions.

Many of us found it difficult to understand how Amendment 40 gained so much traction so quickly. But in this light, the reasons become a little clearer. The restaurant patron may not be interested in the effects of current relative humidity, the noise in the kitchen or the exactitude of the timing; he cares only that the soufflé fell. Couple this with the phenomenon that approximately half of all the people who go into a courtroom exit unhappy with the outcome, regardless of the fairness of the proceeding, and at least some criticism of the system should be expected.

The profession is searching for ways to restore the credibility and respect of the judiciary throughout our community and the electorate. Former Supreme Court Justice Rebecca Kourlis has called for greater accountability for the judiciary as a whole, including regular reviews of judges and soliciting opinions about the system from litigants and jurors. Others have advocated that the judges and attorneys should reach out to schools and provide the civics lessons that have been squeezed out of the classroom by standardized student assessment.

Along with these efforts, we should strive to address the phenomena of good stories distorting the real activities that take place in the courtroom and the actual role of judges. The Bar already has begun some efforts in this area. The Colorado Bar Association and the state judicial department have been offering a "Law School for Journalists" program for more than a year now. These regular classes have provided basic information about the legal system and the judiciary to members of the media, and are consistently well-attended.

We also are looking at ways to help explain to the public the legal bases for the decisions that appear "activist" or are given a needless controversial bent in the media. Whether it is through the Bar’s website or by approaching Denver newspapers for column space, the idea is to try to better-explain the decisions the courts make and present the role of the judges and the courts in a more accurate light. That way, we at least can hope that public scrutiny will be more directed toward those cases that involve truly controversial decisions or matters of first impression, rather than simple application of the law to the facts. If you are interested in being part of a team to help explain these legal issues, please contact the DBA/CBA Communications Director, Stacy Chesney, at schesney@cobar.org.


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