April 30, 2004 The supreme court will issue two decisions on Monday, Trans Shuttle, Inc. v. PUC (No. 03SA156) and Goodson v. American Standard (No. 02SC388). The questions presented in those cases are: Goodson: Whether emotional distress damages in bad faith insurance cases can only be awarded upon a showing of "substantial property or economic loss". Trans Shuttle, Inc: Whether the District Court erred in finding that the Public Utilities Commission of the State of Colorado has jurisdiction to issue a penalty against the Appellants who hold federal licenses to transport passengers and their baggage in intra-and interstate commerce; and whether the District Court erred in finding that the PUC "regularly pursued its authority" in determining that the operations of Appellants were not in compliance with their federal licenses. Whether the District Court erred in finding that the PUC, by imposing a standard for establishing compliance with Appellants' federal licenses, was not engaged in rule-making. Whether the District Court erred in its standard of review of a PUC decision when the issue is a challenge to jurisdiction of the PUC. Whether the District court erred in finding that the PUC Decisions did not deprive the Appellants of their property, i.e., their right to provide passenger service under their federal Certificates, without due process of law guaranteed to Appellants under the United States and Colorado Constitutions, including but not limited to the following: a. by finding that Appellants provided passenger service not in compliance with Appellants' federal Certificates and in finding that Appellants were required to obtain a certificate from the PUC before providing said passenger service; b. by finding that Appellants were not engaged in interstate commerce by picking up passengers and their baggage from DIA and taking them to Denver, Colorado; c. by finding that the PUC had authority to interfere with Appellants' business in compliance with their federal Certificates; d. by imposing on Appellants the burden of proof to show that they were in compliance with their federal Certificates rather than requiring the PUC to prove that the Appellants were not in compliance therewith; and e. by imposing on Appellants the burden to prove that their interstate business was substantial without advising Appellants of the standard of proof to which they would be held.
April 29, 2004 Today's court of appeals announcements are here. The court issued unpublished decisions only. April 26, 2004 Today's supreme court case announcements are here. The court issued no decisions this morning. The court did grant cert. in one case, People v. Muckle, on this issue: Whether the court of appeals erred when it declined to follow this court's decision in Qureshi v. District Court, 727 P.2d 45 (Colo. 1986), and decided instead to apply People v. Page, 907 P.2d 624 (Colo. App. 1995), and thus concluded that concurrent sentences were required because the jury might have based its guilty verdicts on identical evidence. The court of appeals'
decision in Muckle (decided 4/10/03) was unpublished. April 22, 2004 Congratulations to my partner Ed Ramey for receiving last night a prestigious alumni award from the University of Colorado School of Law (the same law school I attended much, much later). Here are today's court of appeals announcements. The court issued six published opinions, which are summarized below. Collateral estoppel will bar litigation in a civil trial of an issue that has been previously litigated in a criminal trial, provided the requisites for the application of issue preclusion are satisfied. A-1 Auto Repair & Detail, Inc. v. Bilunas-Hardy The trial court did not abuse its discretion in allowing evidence of defendant's drug arrests as res gestae because defendant's pending drug cases, and his concern about finding the "snitch" who had turned him in, were inextricably intertwined with the charged crimes. The court said that without "some understanding that defendant had drug charges pending, the jury would have been unable to understand fully his preoccupation with finding the snitch." The court also addressed an issue raised by the People on cross-appeal. The People argued that the trial court erred in barring, pursuant to CRE 615, the deceased victim's father from attending trial after his testimony was complete. The court of appeals agreed that the trial court erred and therefore disapproved the trial court's ruling. The court held that Article II, § 16a of the Colorado Constitution and C.R.S. § 24-4.1-302.5 of the victims' rights act take precedence over CRE 615 regarding witness sequestration. People v. Coney No duty to indemnify where insurance policy excluded claims due to faulty workmanship and damages recovered were based on that theory of liability. McGowan v. State Farm Fire and Casualty Company Colorado adopts the general rule that the "contents" of a house for probate purposes does not include items such as stock certificates, bank accounts, checks, insurance policies, deeds, mortgages, and securities which are found in the house at the time of death, unless a contrary intention is clearly expressed in the will. The court noted that the rule has been applied to exclude jewelry and coins from the contents of a house. Therefore, the court held that stocks, jewelry and coins in the decedent's house were not "contents" of the house and instead were part of the residuary estate. Estate of Lewis County department of human services is a person for purposes of C.R.S. § 15-18.6-101, et seq., and therefore was authorized to execute a "do not resuscitate" order on behalf of an incapacitated person. Because the incapacitated person died during the pendency of the appeal, the court also address whether the appeal was moot. The court concluded that it was not because the matter was capable of repetition yet evading review and involved issues of great public importance. People in the Interest of Yeager Employee was not obliged to settle outstanding differences with her employer. Thus, while employer could reasonably request the employee to consider settling their differences, her refusal to sign the settlement agreement could not be insubordination. Therefore, the Panel improperly upheld the hearing officer's denial of workers compensation benefits by treating the employee's refusal to sign the settlement agreement as insubordination. The majority emphasized the narrow scope of its holding, noting that employees may be terminated not for refusing to sign such agreements, but on the actions and omissions that gave rise to the employer's original dissatisfaction with the employee's performance that led to the agreement being proposed. Judge Vogt dissented, concluding that the record supported the conclusion of the Panel. Bell v. Industrial Claim Appeals Office April 21, 2004 The list of tomorrow's court of appeals opinions is here. The court will issue six published decisions, which I will summarize tomorrow. The court also will issue many unpublished decisions. For fans of Howard Bashman's "How Appealing" blog, it has moved to this new address. April 19, 2004 The Interrogatories decision is here. The two interrogatories from the General Assembly asked Do the elements specified in House Bill 04-1098 that define "custodial moneys" comport with principles of separation of powers under Article III of the state constitution, the legislative power of appropriation under sections 32 and 33 of Article V of the state constitution, and the precedent of the Supreme Court construing such powers? Not answered. Can House Bill 04-1098 constitutionally exclude from the definition of "custodial moneys" any moneys granted by the federal government to Colorado for the support of general or essential state government services of the type for which expenditures are made in the most recently approved annual general appropriation act, including but not limited to additional payments received by the state under the "Jobs and Growth Tax Relief Reconciliation Act of 2003"? Yes. The court declined to answer the first interrogatory, concluding that the nature of federal grant moneys, and specifically whether they constitute custodial funds, must be determined on a case-by-case basis with due consideration given to all of the relevant circumstances. The court concluded that it could not determine at this time whether the definition of "custodial moneys" as provided in House Bill 04-1098 will be adequate for evaluating future grant moneys, which may be disbursed in a manner not yet addressed by this court. The court answered the second interrogatory "yes." The court held that moneys granted by the federal government to Colorado for the support of general or essential state government services, such as those allocated under the federal Jobs and Growth Tax Relief Reconciliation Act of 2003 (the "Jobs Act" or the "Act"), 42 U.S.C. § 801 et seq. (2004), are not custodial funds. The court therefore held that the General Assembly constitutionally excluded such funds from the definition of "custodial moneys" in House Bill 04-1098. Justice Coats was the lone dissenter. Justice Coats agreed with the majority's decision not to answer the first question, but he also would not have answered the second question. He criticized the majority for "seiz[ing] the opportunity to refine its concept of 'custodial moneys' and, correspondingly, alter[ing] the relative powers of the three branches of government over spending." He said that the majority departed radically "from existing law" and thereby gave "the judicial branch an almost unlimited discretion to decide, in each individual case, whether moneys appropriated to the state by the federal government may be directly administered by the governor or must be further appropriated by the general assembly." (Note: my partner Mark Grueskin briefed and argued the case for the General Assembly.) The court issued one other decision today, Board of County Commissioners, Costilla County v. Costilla County Conservancy District. In that case, the court held that the Costilla County Board of Commissioners were not required to give notice of a meeting called by two state agencies and a private mine that was attended by two county commissioners. The court construed the Open Meetings Law to require "public notice of any meeting attended or expected to be attended by a quorum of the public body when the meeting is part of the policy-making process. A meeting is part of the policy-making process when the meeting is held for the purpose of discussing or undertaking a rule, regulation, ordinance, or formal action. If the record supports the conclusion that the meeting is rationally connected to the policy-making responsibilities of the public body holding or attending the meeting, then the meeting is subject to the OML, and the public body holding or attending the meeting must provide notice." The
court did not grant cert. in any cases today. The case announcements
are here. Today is the ninth anniversary of the bombing of the Murrah federal building in Oklahoma City. At the time of the bombing, I was a law clerk for a circuit judge in the U.S. Courthouse across the street from the Murrah building. It was a terrible tragedy, but I am reminded of the response of the judiciary immediately afterwards. The bombing occurred on a Wednesday. All the windows on the North side of the courthouse were blown in (including my office window). But the courthouse was fully operational again by the following Monday, and the judges were uniformly resolute in ensuring that the tragedy would not affect the judicial function. It showed me firsthand that the reverence of and respect for the rule of law embodied in our system was not just a platitude. April 16, 2004 Interrogatories decision will come down Monday. The supreme court will also issue the decision in Board of County Commissioners, Costilla County v. Costilla County Conservancy District. I'll summarize those decisions in Monday's post. April 15, 2004 Happy (?!) tax day. The court of appeals case announcements for today are here. Unpublished decisions only today. April 14, 2004 As soon as the court of appeals posts its list of decisions for tomorrow, that list will be here. Since the court issued published decisions last week, this week it will issue unpublished decisions only. April 12, 2004 Today's supreme court announcements are here. The court issued two decisions today, summarized below. The court also granted cert. in one case. The question presented in that cases follow the new decision summaries. In a case of a failed adoption from another state, the district court had jurisdiction for purposes of determining custody of the child based upon his best interests. The court concluded that the Uniform Child Custody Jurisdiction and Enforcement Act did not apply, that it should look to the Uniform Adoption Act though not yet adopted in Colorado or Missouri (the child's birth state), and held that the child "was a party to this proceeding and, as such, has the right to have his best interests heard and determined by the court, independent of the legal rights of either his biological mother or the Petitioners." Justice Coats dissented strongly, stating that "the majority directs the courts of Colorado to ignore the command of a sister state to return an unadopted baby, born on its soil and placed for adoption according to its laws; and instead to decide for themselves whether the child would be better off in the custody of Colorado residents than in the custody of the child's natural parents in the state of its birth." In the Interest of A.J.C. When a jury instruction includes two alternative factual theories of the same charged offense and the jury returns a general verdict of guilt, due process does not require reversal of that conviction merely because the evidence only supports one of the theories beyond a reasonable doubt. Accordingly, the court upheld the defendant's conviction for child abuse. Justice Bender, joined by Justice Martinez, dissented: "The majority rejects eighteen years of Colorado precedent by declaring that it does not offend constitutional principles of due process of law to submit an alternative theory of culpability for a charged crime that is not supported by sufficient evidence to find guilt beyond a reasonable doubt. . . . A conviction should never be based on a factually inadequate theory of culpability. To hold otherwise dilutes the bedrock constitutional principle of proof beyond a reasonable doubt, which is guaranteed by the due process clause of our state constitution." The court also held that the evidence was insufficient to support a conviction on one theory of liability as charged and tried, concluding that the prosecution failed to prove that by permitting the child to be unreasonably placed in a situation posing threat of injury to the child's life or health, the defendant's actions resulted in serious bodily injury to the child. (Chief Justice Mullarkey, joined by Justice Rice, dissented from this conclusion.) But because the court adopted the above (in bold) due process rule, the conviction was affirmed. People v. Dunaway The court granted cert. in Robbins v. People, No. 03SC563 (court of appeals' opinion), to address this issue: Whether the common law doctrine of laches can be applied, as a time bar, to avoid postconviction review of a class one felony conviction. April 9, 2004 The supreme court will issue two decisions on Monday, In the Interest of A.J.C. and People v. Dunaway. Dunaway involves four questions: Whether the holding in James v. People, 727 P.2d 850 (Colo. 1986), that due process of law requires evidence sufficient to support a verdict by proof beyond a reasonable doubt of each alternative method of committing an offense, is still valid in light of Griffin v. United States, 502 U.S. 46, 11 S.Ct. 466, 116 L.Ed.2d 371 (1991). Whether the court of appeals erred in holding that this case falls within the scope of James v. People, 727 P.2d 850 (Colo. 1986), in conflict with People v. Pineda, 40 P.3d 60 (Colo. App. 2001). Whether the court of appeals erred by holding, under James v. People, 727 P.2d 850 (Colo. 1986), that there was insufficient evidence to support alternative methods of committing the offense of child abuse. Whether the court of appeals erred by applying People v. Martinez, 51 P.3d 1046 (Colo. App. 2001) to rule that expert testimony concerning injuries to shaken babies was improperly admitted. I don't know what the other case involves. Here are summaries of yesterday's published decisions from the court of appeals: No plain error where trial court failed to poll one juror. The court rejected the defendant's argument that the failure to poll one of the twelve jurors was structural error, and concluded that the failure did not undermine the fundamental fairness of the trial. People v. Phillips Trial court abused its discretion, and committed reversible error, by admitting testimony concerning the defendant's refusal to come out of his home and submit to arrest--evidence that the prosecution argued and the court told the jury related to defendant's consciousness of guilt. People v. Summitt County
court did not violate speedy trial right by refusing to dismiss charges
filed in a separate criminal complaint after a previous dismissal of
those same charges. The
court noted that with each separate complaint, speedy trial runs anew.
Huang
v. County Court of Douglas County No
public notice is required to establish a public road by adverse use
under C.R.S. § 43-2-201(1)(c). Bockstiegel
v. Board of County Commissioners of Lake County Magistrate
and the district court exceeded their jurisdiction under the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA) by not limiting
the period they exercised temporary emergency jurisdiction. Under
the circumstances, where Texas was the "home state," the magistrate
lacked subject matter jurisdiction under the UCCJEA to hear a dependency
and neglect proceeding and to terminate the father's parental rights.
People
in the Interest of M.C. Employer had a duty to exercise reasonable care in supervising employee when employer knew or should have known employee's conduct created an unreasonable risk of harm to young women or girls on the work premises. But employer could not be held liable for sexual assaults that occurred away from the work premises. Koca v. Keller Defendants
entitled to attorneys fees as prevailing party under contractual fee-shifting
provision, where the Plaintiffs' claims against them were dismissed
under C.R.C.P. 41(a)(2). Brock
v. Weidner Reasonable
suspicion justifying an investigatory stop existed where officer saw
defendant at 3:30 a.m., in a dark area not usually frequented by the
public and where he had never before encountered people, and where within
the previous two weeks, burglaries had occurred at businesses directly
in front of, and directly on one side of, the business behind which
the officer encountered defendant and his companion. People
v. Rushdoony Boulder's over-occupancy ordinance was not preempted by state law. Instead, the ordinance addressed a matter of local, or at most mixed, concern. Boulder County Apartment Association v. City of Boulder Juvenile
court properly dismissed delinquency petition based on the offense of
unlawful possession of a weapon on school grounds, § 18-12-105.5(1).
The juvenile court had concluded that the prosecution could
not prove its case because it could not show that the juvenile's knife
had a blade of at least 3 1/2 inches, as required by the statute. The
court of appeals rejected the People's argument that the statute prohibits
possession of any knife regardless of blade size. People
in the Interest of J.W.T. April 8, 2004 The court of appeals case announcements for today are here. The court issued ten published decisions. Summaries will be posted tomorrow. April 6, 2004 The court of appeals' oral argument calendar for June is here. April 5, 2004 I'm back. I was on vacation last week, so that's why there were no updates. The supreme court's oral argument calendar for April/May is here. Today's supreme court announcements are here. The court issued one decision and granted cert. in five cases. Simply by making a generic claim for "severe pain and suffering, and emotional distress" in a slip-and-fall case, plaintiff did not impliedly waive her statutory psychotherapist-patient privilege. Therefore, the district court erred in ordering plaintiff to disclose to all records concerning her mental health care for the ten years preceding the accident, as well as for psychotherapy which preceded that ten-year period. The supreme court noted that a party does not sufficiently inject his or her mental condition into the case so as to constitute waiver merely by seeking damages under a generic claim of mental suffering which is incidental to the physical injuries underlying the suit. Hoffman v. Brookfield Republic, Inc. The court granted cert. in these cases: People v. Garcia, No. 03SC675 (Court of Appeals' decision), addressing these questions: Whether hypoglycemia constitutes intoxication under § 18-1-804, 6 C.R.S. (2003) for purposes of raising an intoxication defense.
Whether the trial court required respondent to present a defense of insanity and precluded him from presenting a defense of intoxication by making a pretrial evidentiary ruling that expert testimony on diabetes and hypoglycemia was admissible under an insanity defense.
Whether the court of appeals erred in reversing the trial court’s finding of good cause for a second psychiatric evaluation because the trial court did not make specific findings in its ruling. Abiodun v. People, No. 03SC690 (Court of Appeals' decision), addressing this issue:
In light of Meads v. People, 78 P.3d 290 (Colo. 2003) and Patton v. People, 35 P.3d 124 (Colo. 2001), whether the court of appeals erred in determining that the facts at trial mandated merger of defendant’s convictions for possession into his distribution convictions. People v. Madden, No. 03SC771 (Court of Appeals' decision), involving these issues:
Whether submitting to the jury an alternative method of committing a crime, instead of the method charged in the information, constitutes per se reversible error.
Whether the evidence was insufficient to support the conviction for attempted patronizing a prostituted child and whether the court of appeals erred in holding that there is no requirement that the child be acting as a “prostitute” for a conviction of attempted patronizing a prostituted child. People v. Harding, No. 03SC803 (Court of appeals' decision unpublished), addressing this issue: Whether the prosecution established that the defendant understood the consequences of the right to testify, and therefore, made a valid waiver of that right, notwithstanding the trial court’s incorrect advisement regarding the consequences of testifying. Riley v. People, No. 03SC804 (appeal from district court), involving this question: Whether the district court erred in affirming the county court’s determination that exceptional circumstances justified the arresting officer’s failure to comply with the defendant’s request for a blood alcohol test, as provided in § 42-4-1301(7)(a)(II)(A), C.R.S. (2001).
Last Thursday's court of appeals announcements are here. The court issued unpublished decisions only.
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