August 31, 2006 Today's court of appeals case announcements are here. The court issued unpublished decisions only. Below are the final five summaries of last week's published opinions from the court. The other eight summaries are in the August 30th post. An attorney must enforce a charging lien within the limitations period applicable to enforcement of the underlying debt. But C.R.C.P. 121 § 1-22 does not apply to a motion to enforce an attorney's lien. Therefore, a motion to reduce a charging lien to judgment filed four months after the notice of the attorney's lien was filed within a reasonable time and was not barred by Rule 121. Gold v. Duncan Ostrander & Dingess, P.C. When documents are attached to a complaint, the legal effect of the documents is determined by their contents rather than by allegations in the complaint. A trial court is not required to accept legal conclusions or factual claims at variance with the express terms of documents attached to the complaint. Stauffer v. Stegemann C.R.S. § 8-43-303 is unambiguous and cannot be read to permit an extension when a change of condition manifests itself after the applicable limitations period has expired. Under the facts of the case, the ALJ properly applied the time limits in that section to bar claimant's petition to reopen his claim for additional permanent partial disability benefits. Calvert v. ICAO Giving the words of C.R.S. § 8-41-204 their plain and ordinary meaning, if an employee "who has been hired in" Colorado "receives personal injuries in an accident arising out of and in the course of such employment outside of this state, the employee is entitled to compensation" only if the employee received the injuries "within six months after leaving this state." Hathaway Lighting, Inc. v. ICAO Because the
issue of permanent total disability benefits was legally ripe for adjudication
when claimant filed his first application for hearing, issue of those
benefits was properly closed absent an order reopening the claim. Olivas-Soto
v. ICAO August 30, 2006 I have posted eight summaries of published opinions the court of appeals issued on August 24th. I hope to get the remaining five summaries posted by the end of the week. The court of appeals will issue the following unpublished decisions tomorrow: No.: 03CA1229 In re the Marriage of Gail R. Troutman, n/k/a Gail R.
Lesnick In an appeal
arising out of various securities-fraud convictions, the court upheld
the trial court's denial of defendant's motion to suppress, noting the
record supported the trial court’s conclusion In a case vacated and remanded by the United States Supreme Court for further consideration in light of Georgia v. Randolph (which held “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident”), the court concluded that one of the convictions on appeal had to be reversed. People v. Miller In a groundwater contamination case, the court of appeals rejected the State and CDOT's appeal of the trial court’s order denying their motion to dismiss, on governmental immunity grounds, plaintiff's claims for unjust enrichment, contribution, and declaratory judgment. The court also rejected the plaintiff's cross-appeal of the trial court's dismissal of its trespass and negligence on governmental immunity grounds. Brown Retail Group, Inc. v. State of Colorado For the purpose of proportionality review, attempted aggravated robbery is a grave or serious offense. People v. Reese Surety was not
entitled to exoneration because C.R.S. § 16-4-108 no longer applies
to compensated sureties. Rather, § 16-4-112 provides the framework
for forfeiture proceedings District court could properly make a determination of land title within FED proceeding. Schuler v. Oldervik When the defendant in a lawsuit is not a private party, but an officer or agency of the state, the plaintiff is not entitled to default judgment without first establishing the right to relief based on the merits of the case. Therefore, the district court abused its discretion when it deemed the driver’s res judicata motion confessed and, on that basis, reversed the Department’s ruling revoking the driver's license. The court further held that the district court erred when it concluded that the doctrine of res judicata applied based on the outcome of the driver’s suppression hearing in his criminal case. The court concluded that the determination of reasonable suspicion is not a final judgment regarding a claim, but a determination of an evidentiary issue. Thus, the doctrine of claim preclusion does not apply. Meyer v. Department of Revenue Trial court could deviate from the child support guidelines if their application would be inequitable, unjust, or inappropriate, such as when there are extraordinary costs associated with parenting time. But the trial court could not deviate from the guidelines unless it made specific factual findings justifying such a deviation. Because the court did not do so, it erred. In re Marriage of Ikeler August 28, 2006 Here are today's supreme court announcements. The court did not issue any decisions, but did grant cert. in five cases. The issues in those appeals are set forth below. The court granted review of these cases: Droste v. Board of County Commissioners, No. 05SC823, on this issue:
Whether the court of appeals erred by concluding that the Local Government Land Use Control Enabling Act, § 29-20-101, et seq., C.R.S., supersedes § 30-28-121, C.R.S., of the County Planning and Building Codes, thereby allowing the imposition of a temporary moratorium without a stated termination date that precludes all development activities while a Board of County Commissioners adopts resolutions for the master planning and rezoning of property that has already been zoned. Bostelman v. People, No. 06SC70, on this question:
Whether the court of appeals erred in construing jurisdiction under the direct filing statute, section 19-2-517(1)(a)(IV), to turn on the juvenile’s age at the time when prosecution is initiated rather than the juvenile’s age at the time the alleged crime occurred.
People v. Ramirez, No. 06SC71, on these issues:
Whether the expert testimony of a certified pediatric nurse practitioner should have been admitted at trial where the expert testified her finding was “suspicious” and acknowledged she had not reached a conclusion to a reasonable degree of medical certainty.
Whether the court of appeal’s decision to require the trial court to change the jury instruction on sexual assault on remand was incorrect in light of this Court’s decision in People v. Vigil, 127 P.3d 916, 04SC352 (Colo. Jan. 23, 2006). Criag v. Carlson, No. 06SC99, on this issue: Whether the court of appeals erred when it held that a successor judge’s Batson hearing remedied the original trial court’s error, as a matter of law, in overruling the Petitioner’s objection to defense counsel’s use of peremptory challenges to strike four female prospective jurors. People v. Skufca, No. 06SC348, on this question:
Whether the court of appeals erred in concluding that the admission of res gestae evidence in the prosecution’s case-in-chief impermissibly burdened respondent’s right to testify because the evidence related to charges pending in another case.
August 24, 2006 Here are today's court of appeals announcements. The court issued 13 pulbished decisions, which I will try to summarize by next Thursday. I have a court of appeals argument next week, so it is unlikely that I will be able to post any summaries before next Wednesday. August 23, 2006 The supreme court's oral argument calendar for September is here. The court will hear arguments September 12-14. The court of appeals will announce the following decisions tomorrow, including 13 published ones (it'll be about a week before I'll be able to get summaries posted, however, because I have an argument in the court of appeals next week that will keep me fully occupied): PUBLISHED OPINIONS No.: 01CA2020 People v. Gary Pahl UNPUBLISHED OPINIONS No.: 03CA1365 People v. Guadalupe Solis-Martinez August 21, 2006 The supreme court recently added these two original proceedings to its original proceedings page: No. 06SA252 Prowers County District Court Case No. 06DR22 (Judge Douglas Tallman) In re the Marriage of: Petitioner: KATIE LYNN FRAZEE And Respondent: RILEY DON FRAZEE and Concerning Grandparent Intervenors: LARRY FRAZEE and BEVERLY FRAZEE Synopsis: Petitioner Katie Lynn Frazee seeks relief from the district court’s order in this dissolution of marriage action providing for a three-day grandparent visitation period outside the state of Colorado with an eight-month-old infant who, since birth, has been breastfed and is on a two-hour schedule that requires the mother to provide expressed human milk. Petitioner contends that the trial court’s order fails to comply with Troxel v. Granville, 530 U.S. 57 (2000) and the requirements of section 19-1-117, C.R.S. (2005), as articulated in In re Petition for Adoption of C.A., 137 P.3d 318 (Colo. 2006). On August 10, 2006, the court issued a rule to show cause why the Order re Motion for Interim Orders should not be disapproved for failure to comply with section 19-1-117. Respondent Judge Douglas Tallman is directed to provide a written answer on or before August 21, 2006. Petitioner has ten days from receipt of the answer within which to reply.
---------------------------------------------------------------------------------------- No. 06SA255 Adams County District Court Case No. 05CV1089 (Judge Thomas Ensor) In re: Plaintiff: MONICA G. CONWAY v. Defendants: STATE FARM MUTUAL INSURANCE COMPANY and JOHN/JANE DOES. Synopsis: Petitioner Monica Conway seeks relief from the district court’s order compelling her to execute releases for employment and school records where no claim is being made for loss of earnings or loss of earnings capacity. She also contests the trial court’s ruling that failure to file a privilege log regarding these records constitutes a waiver of any privilege on Conway’s part to the records. On August 17, 2006, the court issued a rule to show cause. Respondent State Farm is directed to provide a written answer on or before September 6, 2006 why the relief requested should not be granted. Petitioner Conway has twenty days from receipt of the answer within which to reply. The supreme court had no case announcements today. The court of appeals' oral argument calendar for October 2006 is here. August 18, 2006 Here are yesterday's court of appeals announcements. The court issued only unpublished decisions. August 16, 2006 Below is the list of decisions the court of appeals will release tomorrow. The court will issue only unpublished decisions. No.: 03CA0166 People v. Santiago Rodriguez-Rodriquez August 15, 2006 I'm finally caught up on the case summaries. The summaries of all published decisions issued by the court of appeals last week are in the August 10th post below. August 14, 2006 Last Friday, a three-judge district court panel dismissed the Colorado federal court redistricting action, on remand from the United States Supreme Court. The court concluded that the Plaintiffs’ Elections Clause claim for relief under Art. I, § 4 of the Constitution should be dismissed under the doctrine of issue preclusion. The court dismissed the plaintiffs' Petition Clause claim for failure to state a claim. Judge Ebel, joined by Judge Weinshienk, wrote the majority decision. Judge Porfilio concurred in the result, concluding that plaintiffs lacked standing. Lance v. Dennis Here are today's supreme court announcements. The court issued no new decisions, but did grant cert. in several cases, listed below. I will get the remaining summaries for the court of appeals' decisions posted later today, in the August 10 post. The court agreed to review these cases: The Denver Foundation v. Wells Fargo Bank, N.A., No. 05SC849, on these issues: Whether the prohibition in the Sterne-Elder Trust on invasion of principal precludes a transfer of the principal of that component Trust of the Foundation from Wells Fargo to the Foundation’s nonprofit corporation to be held as a part of the Foundation’s permanent endowment.
Whether the court of appeals commited error when it imposed its own construction of the Foundation’s Declaration without showing that the Foundation’s construction was in bad faith or an abuse of discretion.
Whether the Sterne-Elder Trust gives The Denver Foundation power to modify a restriction on distribution that is inconsistent with the charitable needs of the community. Is the Foundation’s exercise of that power limited to circumstances that the restriction would make it impossible, illegal or impractical to fulfill the purposes of the Trust.
Whether the transfer of the principal of the Sterne-Elder Trust to the Foundation’s nonprofit corporation as a permanent endowment would cause a merger of all legal and equitable interests in the Trust that would terminate the Trust.
Whether it was proper for the Probate Court to consider evidence on the evolution of the Foundation and on prior Wells Fargo transfers of Foundation component trusts to the corporate entity. Hinojos-Mendoza v. People, No. 05SC881, on these questions: Whether the court of appeals erred in holding that the statements of a report prepared by a “criminalistics laboratory,” for use in the prosecution of drug offenses, are not “testimonial” statements for purposes of Crawford v. Washington, 541 U.S. 36 (2004).
Whether section 16-3-309(5), C.R.S., is unconstitutional on its face and as applied to petitioner because petitioner did not voluntarily waive his right to confront and cross-examine the criminalistics lab technician. Coleman v. People, No. 06SC155, on this issue:
Whether the court of appeals erred in concluding that the admission of the report of a State criminalistics laboratory did not violate the defendant’s right to confront and cross-examine the witnesses against him under the criteria set out by this court in People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003). Medina v. People, No. 06SC188, on this issue Whether the standard of review in Neder v. United States, 527 U.S. 1 (1999), and Griego v. People, 19 P.3d 1 (Colo. 2001) applies when, rather than omitting an element of an offense, a jury instruction describes all the elements of a less serious offense and the defendant seeks the sentence required by the jury’s verdict on that lesser offense. People v. Lopez, No. 06SC219, on this question:
Whether the offense of failure to register as a sex offender, under section 18-3-412.5, C.R.S. (2001) is a strict liability offense or whether it includes a mens rea of “knowingly.”
August 11, 2006 I have posted additional summaries of yesterday's court of appeals' decisions under the August 10 post. I hope to finish the summaries and have them all posted by the end of Monday. August 10, 2006 The court of appeals' announcements for today are here. The court issued 18 published decisions, which I will summarize below, eventually. Keep checking back for summaries, as I may be doing these in groups over the next few days. Trial court
improperly calculated prejudgment interest on noneconomic damages by
first reducing the jury’s verdict to the cap of the Colorado Health
Care Availability Act, C.R.S. § 13-64-301 et seq., then calculating
prejudgment interest. The court held that under § 13-64-302(2),
prejudgment interest claimed for the time period commencing on the date
the action accrued and terminating on the date the action is filed is
subject to, and included within, the $250,000 cap on noneconomic damages,
but that by virtue of § 13-21-101, interest claimed for the time
period commencing on the date the action was filed and terminating on
the date the judgment is satisfied is not included within the §
13-64-302(1) cap on noneconomic damages and is to be computed on the
damages as awarded by the jury. This decision vacated and reversed an
earlier unpublished decision from the panel (a February 17, 2005 decision).
Goodwin
v. Morris Crim. P. 25's
requirement that the same judge impose the sentence after a trial, except
for justifiable reasons to substitute another judge, does not apply
to resentencing proceedings. People
v. Holwuttle C.R.S. §
18-3-402(4) provides that sexual assault is a class three felony if
it is attended by any of several aggravating circumstances. Section
18-3-402(4)(a), in turn, states that one of the aggravating circumstances
is the actor's causing the submission of the victim through the actual
application of physical force or physical violence. Therefore, the statute
unambiguously states that a sexual assault attended by the submission
of the victim through the actual application of physical force or physical
violence constitutes a class three felony. Section 18-2-101(4) provides
that criminal attempt to commit a class three felony is a class four
felony. The
court concluded that the General Assembly intended that persons guilty
of attempted sexual assault through the actual On remand from the supreme court for reconsideration in light of Lopez v. People and other cases, the court of appeals affirms the defendant's sentence. The court concluded that the fact that the two victims suffered serious bodily injuries was an essential element of the offense as set forth in the amended count, and defendant knowingly, voluntarily, and intelligently waived his right to have that fact proved beyond a reasonable doubt to a jury. Accordingly, the trial court’s imposition of an aggravated range sentence based on the fact that two victims sustained serious bodily injuries was proper under Apprendi and Blakely, as interpreted in Lopez and Isaacks. People v. Watts CCIOA permits changes to building and access envelopes of less than all lots in a common interest community. Giguere v. SJS Family Enterprises, Ltd. The “presumptive range” of penalties referred to in Apprendi and Blakely is only that portion of the sentence that subjects the defendant to incarceration or imprisonment. Thus, a mandatory parole period is not included in the determination of the length of the sentence. People v. Kendrick Before a remittitur is offered to a successful claimant, a trial court must determine that damages awarded by the jury are manifestly excessive. The trial court had ordered remittitur on the defendant's successful counterclaim because defendant's disclosures did not reveal the full damages later sought at trial. But the court of appeals, while not condoning the failure to disclose, noted that the trial court’s amendment of the verdict to limit recovery to the amount claimed in the pleadings was error because the opposing party made no objection to the relevant jury instruction addressing damages, which did not specify any amount of damages, and made no allegation that undue surprise or prejudice resulted from the verdict. So the court reversed the remittitur, concluding the damages were not manifestly excessive. Belfor USA Group, Inc. v. Rocky Mountain Caulking and Waterproofing Driver has no duty to pull onto road shoulder when seeing animals on the roadway. Here, Plaintiff encountered a herd of bighorn sheep on the roadway, slowed down to avoid hitting them, and was struck from the rear by defendant. The animals in the roadway created an emergency situation that warranted application of the sudden emergency doctrine. Under that doctrine, a person "who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances.” The court concluded that the Plaintiff, as a matter of law, exercised the same degree of care that a reasonably prudent person would have exercised under the circumstances when she surveyed the situation and reduced her speed to between ten and thirty miles per hour. Therefore, defendant did not rebut the rear-end collision presumption and was 100% liable for the accident. McClintic v. Hesse District court
had jurisdiction under RLUIPA over church's challenge to application
of Town's ordinance restricting parking to temporary rectory at monsignor's
home. The court remanded for further proceedings on the merits of the
application of the Town's ordinance to the rectory. Just as a trial
court is required to allocate the contingent value of assets in pensions
and trusts, it must similarly determine the value of a contingent marital
debt, in this case a potential liability on a lease. The court may determine
the value in one of two ways. First, on the basis of testimony of the
parties or possibly expert testimony, it may determine the potential
obligation, discounted to reflect the percentage chance of liability.
Second, the trial court may otherwise divide the marital assets and
debts, reserving jurisdiction to allocate the contingent marital debt
until such time as the amount of such contingent debt has been determined.
In re the Marriage of Jorgenson Contract provisions that required urban renewal authority to condemn property if necessary were not expressly authorized by the Colorado Urban Renewal Law (URL), C.R.S. §§ 31-25-101 et seq. The URL contains no clear indication of an urban renewal authority’s power to place in the hands of a private party the decision to condemn. But the court did conclude that the contractual obligation to condemn could be enforced under principles of estoppel, and therefore the court remanded for further proceedings on that issue. Judge Dailey dissented, rejecting the notion that condemnation could be required based on estoppel. Cornerstone Group XXII, L.L.C. v. Wheat Ridge Urban Renewal Authority Evident
purpose of C.R.S. § 10-4-110.5(1) is to protect Colorado consumers
by not allowing them to be surprised and rushed into accepting increased
premiums, decreased coverage, or both, upon short notice. Therefore,
that section requires that, where timely notice is not given, the insurer
must, before the existing policy expires, affirmatively act to extend
the existing policy for forty-five In and action
to enforce a judgment wife against husband based on his personal guarantee
of a C.R.C.P. 12(b)(1) motion challenging district court's subject matter jurisdiction was not proper procedural mechanism to evaluate forum selection clause. The court concluded that no Colorado rule of civil procedure adequately addresses the enforcement of forum selection clauses. Instead, the court held that regardless of form in which such a motion appears (1) Trial courts must address the motion at the outset of the proceedings; (2) Once the party moving to dismiss has demonstrated the existence of a forum selection clause, the trial court must require any party opposing the motion not merely to allege, but to demonstrate by a preponderance of the evidence that the clause is unfair or unreasonable, or was fraudulently induced; (3) The trial court is free, if it deems it necessary, to hold an evidentiary hearing and make requisite factual findings; (4) When appropriate, the court may apply the doctrine of waiver. On the facts, the court concluded that the forum selection clause was valid and therefore dismissal without prejudice was the proper ruling. Edge Telecom, Inc. v. Sterling Bank Rule 60(b) motion that raised largely the same arguments raised in opposition to motion for summary judgment was not properly brought under that rule, as it did not seek relief from the summary judgment based on excusable neglect or other justification but instead simply attacked the merits of the summary judgment order. The court reiterated that a Rule 60(b) motion may not be used as a substitute for a timely appeal. Centennial Bank of the West v. Taylor Probate court
exceeded its jurisdiction during proceedings involving guardianship
by conducting a de facto adoption proceeding, something within the exclusive
jurisdiction of the juvenile court. The language
of C.A.R. 3.4(b)(3) prohibiting extensions of time does not preclude
enlarging or City revenue initiative relating to street light charges (requiring the refund of street lighting service charge by March 1, 2006) is administrative, not legislative and therefore not a proper subject for an initiative. The court also held that some provisions of a deficit spending initiative were administrative in nature, and therefore not properly part of an initiative. City of Colorado Springs v. Bull August 9, 2006 The court of appeals will issue the following decisions tomorrow, including 18 published decisions: PUBLISHED OPINIONS No.: 01CA2101 Lynn Goodwin v. Dan H. Morris, M.D. UNPUBLISHED OPINIONS No.: 02CA1158 People v. Charles Garrison August 8, 2006 The Commissions on Judicial Performance have issued their retention recommendations for the 2006 general election. The recommendations can be accessed here. No supreme court justices are up for retention. Five court of appeals judges are up for retention, Judges Marquez, Davidson, Loeb, Carparelli, and Russel, and the commission recommended retention for all of them, as it should have. A quick glance of the full list revealed no judges for whom retention was not recommended. August 7, 2006 The supreme court issued no case announcements today. The court has not yet announced the cases it will hear arguments in at its September term. The court will be hearing arguments on September 12-14. For those of you interested in more long-term planning, the court will also be holding arguments on October 24-26 and December 5-7, 2006, and January 23-25, March 6-8, May 1-3 and June 12-14, 2007. August 3, 2006 Here are today's court of appeals announcements. The court issued only unpublished decisions. There are quite a few matters recently added to the supreme court's original proceedings link. The following have been added since June: No. 06SA162 Pueblo County District Court Case No. 06CV438 Judge Dennis Maes) In re: Plaintiff: CITY OF COLORADO SPRINGS, a Colorado municipal corporation and home rule city, for and on behalf of COLORADO SPRINGS UTILITIES, part of the City of Colorado Springs, v. Defendant: THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF PUEBLO. Synopsis: Petitioner City of Colorado Springs, on behalf of Colorado Springs Utilities, seeks relief from 1) an order of the El Paso County District Court granting Respondent Board of County Commissioners’ motion to transfer venue to Pueblo County and 2) an order of the Pueblo County District Court denying Petitioner’s motion to vacate the El Paso Court’s order and return the action to El Paso County. Petitioner argues that pursuant to C.R.C.P. 98(a), venue must lie in El Paso County, where the utility is located, and it requests that the Court issue writs in the nature of mandamus and prohibition. On June 8, 2006, the Court issued an order to show cause why the relief requested should not be granted. Respondent is directed to file a written answer on or before July 10, 2006 why the relief requested in the petition should not be granted. Petitioner may reply within 30 days of receipt of the answer. ---------------------------------------------------------------------------------------- No. 06SA177 Arapahoe County District Court Case No. 02CR1891 (Judge J. Mark Hannen) In re: Plaintiff: THE PEOPLE OF THE STATE OF COLORADO v. Defendant: OLEKSIY LUK’YANENKO Synopsis: Petitioner Oleksiy Luk’yanenko seeks relief from 1) the trial court’s revocation of his bond and 2) its order that Mr. Luk’yanenko may be held indefinitely in the Arapahoe County jail while awaiting a psychiatric bed pursuant to a commitment to the department of human services, which petitioner alleges violates his constitutional and statutory rights. On June 8, 2006, the court granted Petitioner’s Motion for Stay of Execution and the Arapahoe District Court order revoking Mr. Luk’yanenko’s bail bond was vacated and stayed pending further order by the Supreme Court. The request to re-post bail bond also was granted. The court also issued a rule to show cause why the relief requested in the petition should not be granted. Respondent The People of the State of Colorado, as represented by the District Attorney’s Office for the Eighteenth Judicial District, is directed to answer, in writing, on or before June 22, 2006 why the relief requested in the petition should not be granted. Petitioner has ten days from receipt of the answer within which to reply. ---------------------------------------------------------------------------------------- No. 06SA211 In re: Plaintiffs: Pascual Hernandez, Gloria Smith, Janet Hernandez, Mike Hernandez, Anthony Hernandez, Ralph Hernandez, Annette Terrones and Chris Cauldwell, v. Defendants: Samuel W. Downing, IV, M.D. and Parkview Medical Center. Synopsis: Petitioners Pascual Hernandez, Gloria Smith, Janet Hernandez, Mike Hernandez, Anthony Hernandez, Ralph Hernandez, Annette Terrones, and Chris Cauldwell seek relief from the District Court’s entry of an order changing venue and severing claims. Petitioners contend that the order contravenes the Colorado Wrongful Death Statute, §13-21-203(1)(a), C.R.S, and the supreme court’s decision in Spence v. Systma, 67 P.3d (Colo. 2003). On July 7, 2006, the Court issued a rule to show cause why the relief requested should not be granted. Respondent Parkview Medical Center is directed to provide a written answer on or before August 7, 2006. Petitioners have thirty days from receipt of the answer within which to reply. ---------------------------------------------------------------------------------------- No. 06SA213 In re: Plaintiffs and Petitioners: The Board of County Commissioners of the County of San Miguel, the Coalition of Concerned San Miguel County Homeowners, Hans (Henson) Jones, The Wilson Mesa Homeowners Association, AND Ptarmigan Ranch Owners Association, v. Defendants and Respondents: The Colorado Public Utilities Commission, Commissioner Gregory E. Sopkin, Commissioner Polly Page, Commissioner Carl Miller, Former Commissioner Jim Dyer, Tri-State Generation and Transmission Association, Inc., and the Board of County Commissioners of the County of Montrose. Synopsis: Petitioners the Colorado Public Utilities Commission, Commissioner Gregory E. Sopkin, Commissioner Polly Page, Commissioner Carl Miller, Former Commissioner Jim Dyer, Tri-State Generation and Transmission Association, Inc., and the Board of County Commissioners of the County of Montrose seek relief from an order of the district court granting the motion to supplement the record filed by Respondents the Board of County Commissioners of the County of San Miguel, the Coalition of Concerned San Miguel County Homeowners, Hans (Henson) Jones, The Wilson Mesa Homeowners Association, and Ptarmigan Ranch Owners Association. Petitioners contend that the district court’s order contravenes §§ 40-6-113(6) and 40-6-115, C.R.S. by requiring the PUC to supplement the certified administrative record with advisory memoranda that reflect the mental processes of the PUC’s commissioners. Petitioners seek an order requiring the district court to reserves its previous ruling. On July 6, 006, the Court issued a rule to show cause why the relief requested should not be granted. Respondents are directed to provide a written answer on or before August 7, 006. Petitioners have 30 days from receipt of the answer within which to reply.
No. 06SA232 Jefferson County District Court, 05CR2989 (Judge Christopher Munch) In re: Plaintiff: THE PEOPLE OF THE STATE OF COLORADO v. Defendant: MATTHEW GENE WARTENA Synopsis: The People seek relief from the trial court’s order excluding certain DNA test results unless the tests are videotaped or the District Attorney pays the fees and costs for a defense expert to observe the tests. They contend that in issuing the order, the trial court abused its discretion, exceeded its authority, and violated the separation of powers doctrine. The People request that the court reverse the trial court’s order excluding DNA test results and allow the testing to proceed upon notice to defense counsel who can decide whether to have an expert observe the testing. On July 21, 2006, the supreme court issued a rule to show cause why
the relief requested should not be granted. Respondent Matthew Gene
Wartena is directed to provide a written answer on or before August
21, 2006. The People have thirty days from receipt of the answer within
which to reply. August 2, 2006 Happy birthday to my lovely wife! The supreme court case summaries from Monday are at the bottom of this post. The court of appeals will release the following unpublished decisions tomorrow: No.: 02CA1851 People v. John L. Pacheco Here
are Monday's supreme court announcements. The court issued two decisions,
summarized below. The court also granted cert. in one case, No. 06SC112,
Bildad v. People, on "Whether the trial court erroneously admitted
statements attributed to petitioner that were obtained by law enforcement
and were the result of custodial interrogation without advisement of
his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966)." The supreme court held that the General Assembly did not violate article VII, section 10 of the Colorado Constitution by enacting a law that prevents a person who has been convicted of a felony and is serving a sentence of parole from voting or registering to vote. The intent of the constitutional phrase "full term of imprisonment" in article VII, section 10 is to restore an incarcerated person's full rights upon completion of the entire duration of his or her sentence, or upon a pardon from the Governor. A person who is serving a sentence of parole has not served his or her full term of imprisonment within the meaning of this constitutional provision. Therefore, felony parolees failed to demonstrate that C.R.S. § 1-2-103(4) is unconstitutional, and the district properly upheld the secretary of state's determination that the parolees could neither register to vote nor vote. Danielson v. Davidson Parental incarceration alone is insufficient to work a forfeiture of parental rights under C.R.S. § 19-3-604(1)(c). But sections 19-1-101 to 19-6-106 expressly permits, and in some cases require, a trial court to consider parental incarceration in terminating the parent-child under section 19-3-604(1)(c). Section 19-3-604(1)(c) requires a trial court to consider parental incarceration under two circumstances: (1) if the parent is confined and not eligible for parole for at least six years after the date was adjudicated dependent or neglected; and (2) if the parent is confined and not eligible for parole for at least thirty-six months after the date a child, who is under the age of six when the petition is filed, is adjudicated dependent or neglected. The court also concluded, however, that a trial court is not precluded from considering periods of incarceration of less than thirty-six months. Because the primary and controlling issue in termination proceedings is the determination of what will best serve the interests and welfare of the child, a trial court may consider even a relatively short period of parental incarceration as a factor affecting parental fitness and the needs of a child who has been adjudicated dependent or neglected. People in the Interest of K.D.
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