Colorado’s second-highest court on Thursday clarified that people who are held in contempt of court do have a way to challenge their convictions based on their lawyer’s allegedly ineffective assistance.

The U.S. Supreme Court has long recognized that a convicted defendant may argue their constitutional rights were violated because their attorney’s performance was objectively unreasonable in a way that probably affected the result of the case. In Colorado, criminal defendants generally raise such claims by filing a petition for postconviction relief.

But what if a person is found to be in contempt of court, rather than guilty of a crime? Does the criminal procedure apply there?

In a long-running property dispute in Boulder County, a judge found defendants Laura Lichter and James Pollock in contempt for taking various actions to interfere with a neighboring piece of land. After a 2019 hearing in which Lichter and Pollock were called to testify, the judge ordered them to pay a total of $70,000 in fines. The Court of Appeals upheld the ruling in 2021.

Upon obtaining new lawyers, Lichter and Pollock filed a motion for postconviction relief in 2023. They argued their original attorneys during the contempt hearing did not inform them of their right against self-incrimination, nor did they advise the defendants not to testify. Lichter and Pollock also alleged their attorneys might not have known the defendants had the right to remain silent.

“Without the testimony of Ms. Lichter and Mr. Pollock, the court would not have been able to find them guilty of punitive contempt beyond a reasonable doubt,” their new lawyers wrote. Moreover, because the defendants also went through a 2021 contempt hearing in which they did not testify and were acquitted, it was conceivable they would have been acquitted had they been advised not to testify at the 2019 hearing.

District Court Judge Robert R. Gunning, who joined the bench after the defendants’ contempt hearings, denied their motion. He reasoned Lichter and Pollock could not use the criminal postconviction procedure to claim constitutionally ineffective assistance of counsel.

The defendants appealed to the Court of Appeals. The original plaintiff in the property dispute was no longer the landowner, and the new owner did not participate in the appeal. Instead, Gunning, through the Colorado Attorney General’s Office, attempted to insert himself into the case to defend his ruling.

While the Court of Appeals occasionally decides cases with only one side’s input, “doing so deprives the district court of its voice … disenfranchising a properly interested party,” argued Assistant Solicitor General Joseph G. Michaels.

Shutting down the attempted intervention, Judge Ted C. Tow III slammed Gunning for not citing “a particular argument supported by legal authority” for why he should become a party to the appeal. Tow rejected Gunning’s motion and put the case in front of a three-judge panel for a decision.

In the panel’s Jan. 30 opinion, Judge Christina F. Gomez acknowledged Lichter and Pollock did have the right to counsel in their contempt proceeding. That included the right to effective assistance of counsel.

However, since contempt is not the same as a criminal offense, Gunning was correct that the defendants could not use the criminal postconviction procedures to challenge their lawyers’ effectiveness.

Instead, the defendants had a different option: the rule permitting judges to “reconsider any punitive sanction.”

“A showing that counsel rendered constitutionally ineffective assistance would provide a basis for a court to reconsider its punitive sanction,” Gomez wrote.

The panel consequently directed Gunning to review the allegations of ineffective assistance to see if they had merit.

The case is Independent Reservoir Company et al. v. Lichter et al.