The Lindsey-Flanigan Courthouse in downtown Denver houses several Denver County Court courtrooms. (The Denver Post)
One Denver judge has ruled that another Denver judge violated a state anti-discrimination law when she removed a hearing-impaired lawyer from a jury pool due to his disability, but the court that the offending judge belongs to cannot be held liable for her actions.
“It’s a disappointing situation, a frustrating situation to be in because it’s like, ‘We acknowledge there is wrongdoing, but so what?’ That just hurts,” said Spencer Kontnik.
Kontnik, an employment and disability law attorney with the firm Kontnik Cohen in Denver, uses an interpreter to hear in courtrooms. He reported for jury duty one day in July 2021, was assigned to a domestic violence criminal trial, met the court-appointed interpreter and was told to wait outside the courtroom while the judge conferred with lawyers.
Inside the courtroom, Denver County Court Judge Judith Smith was handed an agreement by the prosecutor and defense attorney in the case. The two attorneys asked that Kontnik be removed from the jury pool “on the grounds that things might be tough for him.”
Smith agreed to exclude Kontnik from the jury. Kontnik then threatened to sue the Denver District Attorney’s Office and the Office of the Colorado State Public Defender but reached settlements with them that included training on the ADA for their staff and donations to the Deaf and Hard of Hearing Bar Association, among other nonprofit organizations.
Unable to reach an agreement with Denver County Court, he sued it on Sept. 9, 2022.
With the facts of the case not in dispute, the question before Denver District Court Judge Mark Bailey has been whether Kontnik can sue Denver County Court. Judges are immune from lawsuits that accuse them of making bad decisions but Kontnik argued that he was suing the court, not the judge. Bailey agreed in February 2023 and let the case proceed.
A three-day trial was set for Tuesday through Thursday of this week, but attorneys for Denver County Court claimed there was no need since the facts were undisputed. Bailey agreed and decided the case in a 15-page decision Monday, one day before the trial.
Spencer Kontnik is an attorney at Kontnik Cohen in Denver, where he specializes in employment and disability law. (Kontnik Cohen)
“The court determines that the excusal of Mr. Kontnik without following the mandatory procedures…was a violation of the Colorado Anti-Discrimination Act,” he wrote, but added that Kontnik “cannot establish that the DCC is legally responsible for the violation.”
Bailey noted that the presiding judge of the county court has talked with other judges about how to handle hearing-impaired jurors, wrote a letter of apology to Kontnik and made relevant training available to judges. Bailey declined to order the county court to do more, finding there is a dearth of evidence that such discrimination happened before or will again.
“The DCC does not and cannot supervise, control or otherwise dictate the decision-making process of judicial officers,” he wrote. “Because the DCC lacks the legal authority to intervene in judicial decision-making, it cannot be held responsible for those decisions.”
Kontnik’s lawyers were Andrew Montoya and Kevin Williams with the Colorado Cross-Disability Coalition, alongside Austin Cohen and Matthew Fenicle from Kontnik Cohen.
“We are definitely disappointed in the decision. Once again, Mr. Kontnik made it just short of the courtroom and was once again kept out of the courtroom. It’s quite an unfortunate situation and we are still mulling over options,” Montoya said, referring to a possible appeal.
He said that he spent a month and a half preparing for this week’s trial and then, “literally hours before the trial was set to begin, the rug was pulled out from under us.
“It’s very frustrating that it got resolved on the eve of trial, on a day when the courts aren’t open, and on MLK Day. On a day when we are supposed to be encouraging and promoting inclusiveness, we get a disappointing result like that.”
The court’s lawyers were Assistant City Attorneys Michele Horn and Amanda MacDonald.
“We are pleased that Judge Bailey found that Mr. Kontnik’s experience with Denver County Court was an isolated incident,” the Denver City Attorney’s Office said in a statement, “and not indicative of a recurring issue within the court.”
The Lindsey-Flanigan Courthouse in downtown Denver houses several Denver County Court courtrooms. (The Denver Post)
One Denver judge has ruled that another Denver judge violated a state anti-discrimination law when she removed a hearing-impaired lawyer from a jury pool due to his disability, but the court that the offending judge belongs to cannot be held liable for her actions.
“It’s a disappointing situation, a frustrating situation to be in because it’s like, ‘We acknowledge there is wrongdoing, but so what?’ That just hurts,” said Spencer Kontnik.
Kontnik, an employment and disability law attorney with the firm Kontnik Cohen in Denver, uses an interpreter to hear in courtrooms. He reported for jury duty one day in July 2021, was assigned to a domestic violence criminal trial, met the court-appointed interpreter and was told to wait outside the courtroom while the judge conferred with lawyers.
Inside the courtroom, Denver County Court Judge Judith Smith was handed an agreement by the prosecutor and defense attorney in the case. The two attorneys asked that Kontnik be removed from the jury pool “on the grounds that things might be tough for him.”
Smith agreed to exclude Kontnik from the jury. Kontnik then threatened to sue the Denver District Attorney’s Office and the Office of the Colorado State Public Defender but reached settlements with them that included training on the ADA for their staff and donations to the Deaf and Hard of Hearing Bar Association, among other nonprofit organizations.
Unable to reach an agreement with Denver County Court, he sued it on Sept. 9, 2022.
With the facts of the case not in dispute, the question before Denver District Court Judge Mark Bailey has been whether Kontnik can sue Denver County Court. Judges are immune from lawsuits that accuse them of making bad decisions but Kontnik argued that he was suing the court, not the judge. Bailey agreed in February 2023 and let the case proceed.
A three-day trial was set for Tuesday through Thursday of this week, but attorneys for Denver County Court claimed there was no need since the facts were undisputed. Bailey agreed and decided the case in a 15-page decision Monday, one day before the trial.
Spencer Kontnik is an attorney at Kontnik Cohen in Denver, where he specializes in employment and disability law. (Kontnik Cohen)
“The court determines that the excusal of Mr. Kontnik without following the mandatory procedures…was a violation of the Colorado Anti-Discrimination Act,” he wrote, but added that Kontnik “cannot establish that the DCC is legally responsible for the violation.”
Bailey noted that the presiding judge of the county court has talked with other judges about how to handle hearing-impaired jurors, wrote a letter of apology to Kontnik and made relevant training available to judges. Bailey declined to order the county court to do more, finding there is a dearth of evidence that such discrimination happened before or will again.
“The DCC does not and cannot supervise, control or otherwise dictate the decision-making process of judicial officers,” he wrote. “Because the DCC lacks the legal authority to intervene in judicial decision-making, it cannot be held responsible for those decisions.”
Kontnik’s lawyers were Andrew Montoya and Kevin Williams with the Colorado Cross-Disability Coalition, alongside Austin Cohen and Matthew Fenicle from Kontnik Cohen.
“We are definitely disappointed in the decision. Once again, Mr. Kontnik made it just short of the courtroom and was once again kept out of the courtroom. It’s quite an unfortunate situation and we are still mulling over options,” Montoya said, referring to a possible appeal.
He said that he spent a month and a half preparing for this week’s trial and then, “literally hours before the trial was set to begin, the rug was pulled out from under us.
“It’s very frustrating that it got resolved on the eve of trial, on a day when the courts aren’t open, and on MLK Day. On a day when we are supposed to be encouraging and promoting inclusiveness, we get a disappointing result like that.”
The court’s lawyers were Assistant City Attorneys Michele Horn and Amanda MacDonald.
“We are pleased that Judge Bailey found that Mr. Kontnik’s experience with Denver County Court was an isolated incident,” the Denver City Attorney’s Office said in a statement, “and not indicative of a recurring issue within the court.”
