August 31, 2004 The supreme court's case announcements from yesterday are here. The court issued no decisions, but did grant cert. in one case, People v. Rodriguez, to address these issues: Whether a defendant
who is being tried for a misdemeanor has a Colorado Constitutional right
to a jury of twelve. Rodriguez appears to be a case taken directly from the district court. By the caption, it appears the district court may have declared a statute unconstitutional, in which case the court of appeals would have no appellate jurisdiction over the case under CRS§ 13-4-102(1)(b). Here, finally, are the summaries of the court of appeals' published decisions from last Thursday: Dead man's statute required exclusion of testimony of purported common law spouse of decedent, where the testimony had a direct effect on the amount to be distributed to the heirs. In the Matter of the Estate of Crenshaw Trial court erred in treating alleged lack of capacity to sue as lack of subject matter jurisdiction. Capacity to sue is not jurisdictional and can be waived. Similarly, the legal existence of a party and its capacity to sue cannot be challenged by a motion to dismiss under C.R.C.P. 12(b)(5). In so holding, the court of appeals distinguished C.R.C.P. 9(a)(1) from Fed. R. Civ. P. 9(a)(1), noting that the Colorado rule contains a requirement that the federal rule does not-to establish capacity at trial. Because of that additional requirement, the court concluded that capacity cannot be challenged via a Rule 12(b)(5) motion. Ashton Properties, Ltd. v. Overton Under workers' compensation scheme, cost of living allowance is based upon the maximum rate payable for permanent total disability benefits, not the claimant's (higher) average weekly wage. Guido v. Industrial Claim Appeals Office Temporary orders do not grant "parenting time rights" as that term is specified in CRS§ 14-10-129(1)(b)(I), but simply provide for parenting time pending a final determination at permanent orders. While temporary orders are enforceable, they do not have the same effect as permanent orders, which establish rights in connection with the decree of dissolution that stay in effect until one party establishes a change in circumstances. Therefore, the district court did not err by applying the best interests of the child standard in reducing a father's parenting time, rather than the endangerment standard set forth in § 14-10-129(1)(b)(I). In re Marriage of Fickling August 27, 2004 I won't be doing anymore updates until Tuesday. I'm taking Monday off to celebrate, belatedly, my wedding anniversary. The jury is out in my trial, and I'm simply awaiting a verdict. I would love to be doing summaries of yesterday's court of appeals decisions, but instead have to be content with packing up my office for renovation, which starts tonight. The Kobe Bryant jury, on the other hand, is in. Well, at least selection has begun. I suspect that will take awhile. The supreme court will issue no decisions on Monday, only rulings on cert. petitions. If the court grants any, I'll let you know Tuesday. The supreme court's oral argument calendar for September is here. Of note is the appeal of Lisl Auman, which will be argued on September 13 at 9 a.m. August 26, 2004 The court of appeals case announcements for today are here. The court issued five published decisions, and many more unpublished ones. I'm still in trial, so I won't be able to do summaries until that's over. Thanks for your patience. August 23 , 2004 Robert Hawthorne appointed to the court of appeals. Soon-to-be-Judge Hawthorne is an experienced attorney from Limon. Click here for more details about our newest appellate judge. Congratulations to Mr. Hawthorne, and I wish him many years of great service to the court and the people of Colorado. August 20, 2004 There will be no posts next week until after my trial is over. Sorry for the inconvenience. I do hope to get posts up by the end of next week if possible. The supreme court will issue no case announcements on Monday. August 19, 2004 The court of appeals case announcements for today are here. The court issued only unpublished decisions. August 18, 2004 Contrary to yesterday's post, the NCAA has refused to reinstate Jeremy Bloom. Citing "multiple and willful violations of NCAA rules regarding endorsements," the NCAA adhered to its overly-rigid stance and declined to permit Bloom to be both a member of the U.S. Ski Team and the CU football team. The NCAA is simply wrong, and the result of its rigid stance is that an athlete who has the great talent to excel in two sports is denied the right to compete in one of them. Jeremy Bloom's only "crime" was to be too talented. The list of cases the court of appeals will announce tomorrow will be here (sometime today, anyway). The court will issue only unpublished decisions. August 17, 2004 Jeremy Bloom will reportedly be reinstated by the NCAA today, the Rocky Mountain News reports here. The supreme court denied the People's review of the trial court's ruling on rape shield evidence in the Kobe Bryant case. The Rocky Mountain News story is here. The trial is set to go on August 27. I can top that, though, as I have a trial starting August 23 (which will curtail my blogging activities until the trial is done). August 16, 2004 The supreme court's case announcements for today are here. The court issued no new decisions. The court modified the opinion in Garhart v. Columbia/Healthone, LLC, to address an issue on economic damages. The court granted cert. in one case, People v. Rawson, on the following issues: Whether the court of appeals erred by requiring the trial court to inquire into the defendant’s financial condition when determining whether the defendant knowingly and intelligently waived his right to counsel.
Whether the standard of People v. Arguello, 772 P.2d 87, 95 (Colo. 1989) concerning a defendant’s mental competency to waive the right to counsel should be reconsidered in light of Godinez v. Morton, 509 U.S. 389 (1993).
The court
of appeals' decision in Rawson is here. August 12, 2004 The prosecution in the Kobe Bryant cases has filed an interlocutory appeal on the district court's decision to permit some evidence of the accuser's alleged sexual conduct near the time of the alleged assault. I'll keep you posted on developments in the supreme court on this. Here are today's court of appeals announcements. The court issued 15 published decisions, summarized below (I'm posting in groups rather than all at once). Although
a trial court has wide latitude in determining which costs to award,
a trial court must award costs to the prevailing party in a declaratory
judgment action. This
insurance coverage case was originally unpublished, but has been re-designated
as a published decision. Globe
Indemnity Co. v. Travelers Indemnity Co. of Illinois The scope of a grant of a license to use a trademark is limited to preventing a licensee from using the mark in a manner that misleads or confuses the public. Employment Television Enterprises, LLC v. Barocas Columbine
videotapes case: Court of appeals withdraws its January decision on
whether the videotapes, audiotapes and written materials of the Columbine
perpetrators are criminal justice records. The court granted The Denver
Post's petition for rehearing, withdrew its earlier decision, and issued
a new opinion that holds that the materials are not criminal justice
records under the Colorado Criminal Justice Records Act. But the court
did hold that the materials are public records, the disclosure of which
is governed by the Colorado Open Records Act, C.R.S. § 24-72-101,
et seq. The
court remanded the case, again, to the district court to determine whether
those records should be disclosed under the Open Records Act.
Treasurer's deed that conveyed property to county using the language "less [number of] acres deeded to County of Gilpin for Highway Purposes as described in Deed recorded in . . . Gilpin County Records," conveyed fee simple title to county and did not mean delinquent taxpayer retained fee simple ownership, subject only to the county's right to use those acres for highway purposes. Bolser v. Board of Commissioners Colorado Sex Offender Lifetime Supervision Act, C.R.S. § 18-1.3-1001, et seq., is not unconstitutional. Specifically, the court held that the act does not violate procedural or substantive due process, equal protection, the right to be free from cruel and unusual punishment, or the separation of powers doctrine. People v. Dash Sealed supplemental administrative record was sufficient to support prisoner's disciplinary conviction and to justify his placement in administrative segregation. DOC regulations require that confidential information be recorded in a separate record that shall not be revealed to the accused offender, and the prison officials must make a finding of reliability of the confidential information. The court held that even though it may be preferable to make those findings on the record prior to, or contemporaneous with, issuing the decision on the disciplinary matter, the regulations did not require it. Instead, the inmate should be informed in the notice of charge that confidential information is being considered. Thomas v. Colorado Department of Corrections Tribe may appeal interlocutory order denying a motion to dismiss based on tribal sovereign immunity when the issue presented is one of law, not of fact. On the merits, however, the court concluded that the Tribe had waived its sovereign immunity in its contract with a computer software company. Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe Insurer's delivery to customer of a partially completed application for insurance was not an offer of insurance but instead an invitation for an offer. Thus, when customer signed and returned the application and premium, the parties were still in the negotiating stage, pending the receipt of the completed application, completion of the underwriting process, acceptance by insurer, and issuance of a binder and policy. Accordingly, there was no coverage for a loss by the customer. Griffin v. State Farm Fire & Cas. Co.
General Assembly intended to limit the punitive damages awarded on a particular tort claim to the amount of actual damages awarded on that same claim, as is evident from the plain wording of C.R.S. § 13-21-102(1)(a). Hensley v. Tri-QSI Denver Corp. There is no conflict between requiring advance notice to terminate eligibility for Medicaid benefits and allowing recovery of benefits paid erroneously before notice of termination. Therefore, Larimer County Department of Human Services could recover $5,795.40 in erroneously paid Medicaid benefits from a recipient despite the fact that those benefits were paid before she received notice of her termination from Medicaid. Nededog v. Colorado Dep't of Health Equitable subrogation may be applied to a purchaser and new mortgagee, and constructive notice of judgment lien does not preclude application of equitable subrogation. The court spelled out the elements that must be found before equitable subrogation may apply: (1) the subrogee made the payment to protect his or her own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt paid, (4) the subrogee paid off the entire encumbrance, and (5) subrogation would not work any injustice to the rights of the junior lienholder. Hicks v. Londre In stepparent adoption proceeding, father was entitled to be advised of his right to a hearing before a district court judge. The requirement that the magistrate inform the parties of their right to a hearing before a judge in the first instance is mandatory. Since father was never advised of this right, the orders of the magistrate and district court had to be vacated. In the Matter of the Petition of R.G.B. for the Adoption of T.C.C. Record did not support trial court's conclusion that the public interest in retaining petitioner's arrest and criminal records unsealed outweighed the adverse consequences to petitioner if his petition were denied. In so holding, the court noted that although the General Assembly has given significant attention to the applicability of C.R.S. § 24-72-308 to sex offenses, it has never indicated that persons acquitted of sex offenses may not petition to have their records sealed. Upon the Petition of R.J.Z. v. People Failure of magistrate to advise mother of her right to a hearing before a judge or to secure a waiver of that right, did not divest the magistrate of subject matter jurisdiction, but it did constitute reversible error. The court concluded that C.R.S. § 19-1-108(3)(a) mandates that the magistrate inform the parties of their rights to a hearing before a judge in the first instance. In the Interest of A.P.H. August 11, 2004 The list of cases the court of appeals will issue tomorrow is here. The court will issue 15 published decisions and many more unpublished ones. The court of appeals' oral argument schedule for October is here. August 9, 2004 There are no case announcements from the supreme court. The list of the three finalists for the court of appeals vacancy is here. Governor Owens has until August 20 to appoint one of the three. August 5, 2004 The court of appeals case announcements for today are here. The court issued only unpublished decisions. August 4, 2004 Here is the list of cases the court of appeals will release tomorrow. The court will release unpublished decisions only. Media withdraws stay application in the Kobe Bryant rape shield hearing transcript case. The media's letter to the clerk of the United States Supreme Court is here. In light of the release of the transcript (albeit somewhat redacted), the media agreed to dismiss the case. The media's action, though understandable under the circumstances, will leave unresolved the question whether the prohibition on release of the unredacted transcript was an unconstitutional prior restraint. Oh well, on to other things. August 3, 2004 In the Kobe Bryant rape shield hearing transcript case, the district court "with great reluctance" has ordered the release of a redacted transcript. The district court's order is here. The court ordered five redactions: (1) the name of the alleged victim under C.R.S. § 24-72-304(4)(a); (2) argument and evidence pertaining to sexual conduct held to be inadmissible under the Rape Shield statute; (3) argument pertaining to the alleged use of prescribed medication and mental health history, pending a ruling on two outstanding motions; (4) argument concerning certain portions of the Crime Victim Compensation records under C.R.S. § 24-4.1-107.5; and (5) argument and evidence pertaining to alleged drug and alcohol use. The media may well appeal and argue that release of anything but an unredacted transcript still constitutes a prior restraint forbidden by the First Amendment. Stay tuned. Judicial performance evaluations for the 84 judges standing for retention on the November ballot can be found here after noon today. The
supreme court case announcements from yesterday are
here. The court issued no decisions Monday, but it
did grant cert. in one case, Lobato v. Industrial Claim Appeals Office,
involving this question: Whether
the court of appeals correctly interpreted section 8-42-107.2, 3 CRS
(2004), as requiring that a claimant with a final admission of liability
filed before the effective date of the statute request an independent
medical examiner within thirty days of the effective date of the statute,
and rejecting an alternative interpretation by the Director of the Division
of Workers’ Compensation ultimately reflected in Rule IV(L), 7
C.C.R. 1101-3.
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