Trump’s nominee for Colorado’s U.S. Attorney, Jason Dunn, once received a searing and rare reprimand by Judge Richard L. Gabriel, who now sits on the Colorado Supreme Court.
Gabriel’s admonishment of Dunn came in a 2015 appeals court decision tossing out a ruling that the Douglas County School District had made a illegal campaign donation by distributing a report, produced by a conservative group. Dunn represented the Douglas County School District, referred to below as the “District” by Gabriel, who sat on the Colorado appeals court at the time.
Writing for the majority in the case, Keim v. Douglas County, Gabriel commented on the “tone” of Dunn’s briefs, writing that they contained “personal attacks and serious accusations” that were inappropriate and unfounded” as well as “rhetoric” that was both “unpersuasive and unhelpful.”
Gabriel wrote in paragraph 32 of the opinion:
Third, we feel compelled to comment on the tone of the District’s appellate briefs. In its briefs, the District referred to Keim’s arguments as “nonsensical”; accused her of “subtle mischaracterization,” “wholesale mischaracterization,” and “blatantly misleading” the court; described its reaction to certain of Keim’s arguments with inflammatory (or perhaps sarcastic) language like “dumbfounded”; *728 and even referred to certain of the ALJ’s findings in a derisive way. These kinds of personal attacks and serious accusations were inappropriate and unfounded. Disagreement—even vehement and vigorous disagreement—with a trial court’s rulings and with the arguments of an opposing party and counsel are, of course, part and parcel of any litigation matter. Nonetheless, we expect such disagreements to be civil and respectful. The use of rhetoric like that cited above is unpersuasive and unhelpful. See Martin v. Essrig, 277 P.3d 857, 860 & app’x (Colo. App. 2011).
Court observers say that judges rarely admonish attorneys, particularly of the caliber normally nominated for the position of U.S. Attorney, in written opinions.
“I do not recall a Court ever calling out arguments in a brief in that way,” said Denver attorney Jane Feldman, who staffed the Colorado Ethics Commission and has over 35 years of litigation experience. “Courts generally address arguments made in a brief, and say the arguments are not persuasive, but do not comment on the tone. Furthermore, I have drafted and reviewed many briefs, and I don’t recall ever reading a brief in which the arguments were described in that way. Lawyers generally try to be professional in briefs, because you do not want to negatively impact the Court in case the majority is on the other side, and the records are reviewed on appeal. Lawyers generally don’t disparage the arguments made by the other side in that way. You might say something like, ‘Plaintiffs argument is contrary to the facts,’ or “is not in accordance with common practice,” but it sounds like Dunn went too far.”
Dunn, a “shareholder” at Brownstein, Hyatt, Farber, Schreck, did not return a call for comment.
U.S. Sen. Cory Gardner (R-CO) threw his support behind Dunn in June, when Trump nominated Dunn for Colorado’s chief federal prosecutor, after a 18-month delay.
“I am confident that he will make an excellent United States Attorney for the District of Colorado,” Gardner said in a statement, published in The Denver Post. “Jason has a proven record of public service and involvement in his community, and he has the integrity and character that will make Colorado proud. I will urge my colleagues on both sides of the aisle to support his confirmation.”
The Post reported that Dunn worked on regulatory issues and for prominent Republican candidates and causes.
If Dunn is confirmed by the U.S. Senate, he would replace Colorado’s interim U.S. Attorney, Bob Troyer, who replaced 2016 Obama appointee John Walsh.