The court of appeals case announcements for December 24 are here. The court issued only unpublished decisions. Monday, December 22, 2003 Today's supreme court announcements are here. The court issued no decisions and granted no cert. petitions, so there's not much to report. The court of appeals' oral argument calendar for February 2004 is here. I won't be doing another update until next week, so I'll use this one to wish everyone Happy Holidays. Friday, December 19, 2003 The supreme court will issue no decisions on Monday. But the court will rule on cert. petitions. If the court grants review in any cases, I'll let you know. Have a good weekend. Federal court asked to review Colorado Supreme Court's redistricting rule, according to Denver Post. The Post said lawyers for the Republicans asked the three-judge district court to review the redistricting decision to see if it violated the federal constitution. But the state argued that the proper path was to seek review of the redistricting decision by the U.S. Supreme Court, rather than before the three judge panel. According to the article, one of the judges, 10th Circuit Judge Ebel (who at one time clerked for Justice White), said in the hearing that "We're going to accept as gospel anything that the Colorado Supreme Court says about Colorado law." The Post article is here. I'm not much for predictions, but I just don't see the federal court getting involved in this redistricting issue. The Colorado Supreme Court expressly, and I think emphatically, based its decision on the Colorado Constitution and its interpretation of it. I just don't see how the Republicans can get around that. I guess only time will tell. Also, as a heads up for the coming two weeks, I will be taking some time off and will not be doing updates on days when I'm not in the office. Thursday, December 18, 2003 Today's case announcements from the court of appeals are here. The court issued five published decisions, and many unpublished decisions. Here's a recap of the published decisions: Rape shield statute precluded presenting evidence of victim's sexuality and prior sexual contact with persons other than defendant. The court also held that the trial court did not err in ruling that the defendant's testimony from a suppression hearing could be used at trial to impeach favorable character testimony from the defendant's sister. The defendant had argued that the trial court violated his Sixth Amendment right to a fair trial because the court's ruling caused him to not call his sister to testify to his good character. The court of appeals rejected that argument, concluding that such impeachment of a character witness is proper when it concerns facts regarding the charged offenses that the defendant has conceded earlier in the trial through testimony or statements of counsel. Judge Taubman wrote the opinion. It will be interesting to see if this case makes it to the supreme court. The constitutional issue seems pretty weighty. People v. Dembry Successful plaintiff in C.R.C.P. 106(a)(4) action may recover costs against the state. The court of appeals interpreted C.R.S. § 13-16-111 to permit an award of costs against the state, and held the statute fell under one of the exceptions to C.R.C.P. 54(d)'s restriction on recovering costs against the state. Branch v. Colorado Dep't of Corrections Currency in safe in defendant's house was in his "control" for purposes of forfeiture statute. The court held that "control" encompassed "any currency that is legally the property of the defendant, as well as any currency that the defendant has the authority or the power to manage or direct, even if such currency is not in the defendant's actual physical possession when it is seized." The court upheld the forfeiture of $33,212. People v. Thirty-three Thousand Two Hundred and Twelve Dollars Health Care Availability Act does not preclude recovery of costs by prevailing defendant in a medical negligence action. The court also held that the defendant doctor had the substantive right to recover costs, regardless of whether the doctor's liability insurance carrier paid the costs. Mullins v. Kessler Claimant's failure to submit proof regarding the working conditions of workers engaged in the same or similar work for the same and other employers in the locality did not prevent him from receiving an award of benefits for unsatisfactory working conditions, provided that he otherwise presented sufficient evidence to satisfy the statute. Judge Rothenberg wrote the majority opinion. Judge Graham dissented, concluding that the majority had rejected the holding in Arias v. ICAO, 850 P.2d 161 (Colo. App. 1993). Judge Graham believed that the majority essentially established a per se rule that working between 56 and 63 hours a week constitutes "unsatisfactory working conditions." I think there's a good chance the supreme court could weigh in on this case. Campbell v. Industrial Claim Appeals Office Tuesday, December 16, 2003 Three finalists have been named as possible successors to Boulder District Court Judge Frank Dubofsky. Judge Dubofsky had been a court of appeals' judge a number of years ago. The three are Maria Encarnacion Berkenkotter, Dolores Diane Mallard, and Steven Meyrich. The governor has 15 days to appoint one of them. Read the press release here. Monday, December 15, 2003 Today's supreme court case announcements are here. The court decided two cases today, one an interlocutory appeal in a criminal case, the other a C.A.R. 21 original proceeding: Defendant was "in custody" for Miranda purposes when he was questioned by police officers in a private room at Children's Hospital in Denver. The court affirmed the suppression of statements the defendant made to the police officers because the defendant received no Miranda advisement in the hospital room (or elsewhere). The court concluded, however, that statements the defendant made to his wife in the officers' presence after the police interview was over were not the functional equivalent of interrogation, and thus need not be suppressed under Miranda. Justice Coats, joined by Justice Kourlis, dissented from the court's conclusion that the defendant was in custody at the hospital. People v. Minjarez This is the latest in a series
of 5-2 split decisions, where Justices Coats and Kourlis have dissented,
including the redistricting decision. Now, I'm no statistician--when
I went to law school I vividly remember being told there would be no
math--but it seems to me that the recurring split is more than mere
coincidence. A Personal diary is not a public record under the Colorado Open Records Act. In so holding, the supreme court adopts the federal Freedom of Information Act test for determining whether the Colorado act applies to requested documents. Under that test, the plaintiff requesting information must show that a public entity improperly withheld a public record. Where the parties dispute whether the document is public or private, the supreme court held that the requesting party bears the initial burden to make a threshold showing that the document is likely a public record. If the plaintiff makes that initial offer of proof, then the burden shifts to the custodian of the document to demonstrate the contrary. The court reasoned that while both CORA and prior case law demonstrate that the disclosure of public records and the creation of an open government are important goals, the court steadfastly guards against disclosure of private papers: "The purposes behind CORA, open government and citizen access, generally are not furthered by disclosing public officials' every thought and feeling. Were we to allow such unfettered access, we would not only discourage public service, we would create an arena of gossip and scandal instead of facilitating a forum of open and frank discussion about issues concerning public officials and the citizenry they serve." On the facts of the case, the supreme court held that a personal diary of the Montrose County Manager was not a public record. The County Manager had used the diary to refresh his memory in a termination hearing for a county employee. The court concluded that the requesting party did not meet its initial burden to show that the document was likely a public record. In re: Wick Communications Co. v. Montrose County Board of County Comm'rs The court granted cert. in one case, Board of Assessment Appeals v. Sampson, No. 03SC451, to address the following question: Whether the court of appeals assigned the appropriate burden of proof to a taxpayer in an appeal before the Board of Assessment Appeals. The court of appeals' decision in Sampson is here. Friday, December 12, 2003 The supreme
court will issue two decisions on Monday, Case Nos. 03SA194
- In Re Wick Communications v. Montrose Co. Comm, and The court of appeals' February 2004 oral argument calendar is here. Thursday, December 11, 2003 Today's court of appeals cases announcements are here. The court issued unpublished decisions only. Wednesday, December 10, 2003 Supreme court expedites school voucher appeal. In an order issued this afternoon, the court granted a motion to expedite the appeal. I wouldn't say the court put the appeal on the "fast track," but rather more of a "moderately-quickly-paced" track. The record on appeal is due February 2, 2004. The opening briefs are due 30 days after the record is transmitted. Response briefs are due 25 days after the opening briefs are filed. The court did not set an argument date, but I imagine late-April or May could be the timeframe. By the way, the appeal is Owens v. Colorado Congress of Parents, Teachers and Students,Case No. 03SA364. Tomorrow the court of appeals will issue only unpublished decisions. The list of decisions the court will release is here. State appeals voucher ruling to supreme court, the Denver Post reports here. The state also has asked the district judge to stay the injunction pending appeal. U.S. Supreme Court upholds almost all of McCain-Feingold. The 298-page decision is here. I'll leave it to others to distill those pages down. I think I'll read that decision some snowy Sunday with a glass of wine (though given its length I should probably include a meal or two--and a pot of coffee to keep me awake). To those of you who wade through the decision (perhaps "slog" is a more appropriate verb), I tip my hat. Monday, December 8, 2003 Today's supreme court case announcements are here. The court issued three decisions and granted cert. in one case. Below is a summary of the cases. The probationary sentence for a misdemeanor conviction arising out of a crime committed on or before April 16, 2003, may not exceed the maximum statutory term of incarceration for that misdemeanor. In this CAR 21 proceeding, the court held that former C.R.S. § 16-11-101(1) (1999) modified and constrained the grant of probationary power under C.R.S. § 16-11-202 in the context of misdemeanor sentencing. Justice Rice wrote the majority opinion. Justice Coats, joined by Justice Kourlis, dissented, disagreeing with the majority's statutory interpretation. People v. Kennaugh Defendant's pre-arrest silence had virtually no probative value as evidence of the defendant's sanity, and therefore was inadmissible as logically irrelevant under CRE 401. The court also noted that even if the evidence had some minimal probative value, the potential for unfair prejudice rendered the evidence inadmissible under CRE 403. Justice Rice again wrote the majority opinion, and Justice Coats, joined by Justice Kourlis, again dissented. (Is a pattern emerging?) The dissent considered the majority's analysis of relevance "to be flawed from its inception by its mistaken presumption that the defense of insanity is complete upon expert determination of the existence of a mental disease or defect." In light of the court's ruling on the evidentiary issue, it did not reach the constitutional issue of whether the Fifth Amendment privilege against self-incrimination applies to pre-arrest silence. People v. Welsh Statutory prohibition against granting probation to defendants with two prior felony convictions can be waived. The court held that C.R.S. § 18-1.3-201(4)(a)(I) was not implicitly overruled or limited by C.R.S. § 18-1.3-201(4)(a)(II). The decision was unanimous. In re Chism The court granted cert. in People v. Vanrees, No. 03SC290, to consider these issues
Whether the court of appeals erred in holding that the trial court’s supplemental instruction improperly excluded evidence of defendant’s “mental slowness.”
Whether a defendant who fails to plead the statutory affirmative defense of impaired mental condition is entitled to introduce evidence of “mental slowness” to negate the culpable mental state for a criminal charge. The court of appeals' decision inVanrees is here.
Friday, December 5, 2003 Next Monday the supreme court will issue three decisions: 03SA13 People v. Kennaugh, addressing whether the probationary term for a misdemeanor conviction can exceed the maximum term of imprisonment which is statutorily authorized. 02SC340
People v. Welsh, addressing whether evidence of a defendant's
pre-arrest silence is admissible as evidence of her guilt, and, in the
alternative, whether evidence of a defendant's pre-arrest silence is
admissible to impeach the credibility of her statements to mental health
experts where the defendant has pleaded not guilty by reason of insanity. 03SA226 People v. Chism, a case decided without oral argument (so I don't know what the issues are). More redistricting news. The GOP is asking a federal court to decide whether the Colorado Supreme Court's redistricting decision violated the U.S. Constitution. Click here for the Rocky Mountain News article and here for the Denver Post's. The Dems are asking the federal court to dismiss the federal suit in light of Monday's redistricting decision. Thursday, December 4, 2003 Today's court of appeals' list of decisions is here and the case announcements are here. The court issued seven published decisions, which are summarized below. Conspiracy conviction reversed where trial court prohibited the defendant from offering evidence of a conversation the defendant and another had about the alleged conspiracy. The court of appeals concluded the statements were not hearsay as they were not offered for the truth of the matters asserted but instead to show the very fact that the statements were made. People v. Scearce Where buyers and sellers have entered into binding real property purchase and sale agreements, buyers need only establish that they are "willing and able" to perform in order to obtain specific performance. On the facts of the case, the court of appeals upheld the trial court's order for specific performance. Clark v. Scena Statutory right to speedy trial not violated where there was no evidence of bad faith interference with that right. The court of appeals also held that the defendant's guilty plea waived his right to appeal the trial court's denial of his motion to dismiss on constitutional speedy trial grounds. People v. McMurtry Public policy precludes an insurer from restricting Uninsured/Underinsured (UM/UIM) coverage according to type of vehicle, even if the policyholder requests the restriction. Bernal v. Lumbermens Mut. Cas. Co. Terminated employee may not seek relief for "constructive discharge" where the employer made the option of resignation available after the employee's termination. Koinis v. Colorado Dep't of Public Safety Trial court abused its discretion by ordering the sale of a party's interest in real property without finding that a partition in kind would result in manifest prejudice. The court also held that C.R.S. § 38-28-110 did not authorize the trial court to grant a purchase option to the other co-owner. Young Properties v. Wolflick Trial court erred by granting summary judgment without giving the opposing party the opportunity to opposed it as required by C.R.C.P. 56(c) and 121 § 1-15, but that error was harmless. The court also held that collateral estoppel precluded the relitigation of issues previously determined in arbitration. Union Ins. Co. v. Hottenstein Wednesday, December 3, 2003 Denver district judge enjoins state's school voucher program as unconstitutional. Read the Rocky Mountain News story here. Because the court ruled the statute unconstitutional, the appeal must go directly to the Colorado Supreme Court. The court of appeals does not have jurisdiction over cases in which a statute is declared unconstitutional. I hope the supreme court was not looking for too much of a breather after the redistricting decision. Upcoming arguments. As we all experience the post-redistricting wait letdown, it's not too early to look ahead to upcoming cases and arguments. The court of appeals argument calendar for December is here. The January 2004 calendar is here. The supreme court has not yet posted its upcoming calendar. Rule changes: The supreme court will have a hearing on January 29, 2004, on proposed changes to Rules 32.1 and 32.2 of the Colorado Rules of Criminal Procedure. Written comments are due January 15. Click here for the hearing notice and here for more information on the proposed changes. Click here for a list of recent rule changes. The biggest change, of course, is new Rule 16.1 of the Colorado Rules of Civil Procedure. This new rule had quite a bit of opposition from a number of diverse groups, but it has been adopted. It goes into effect on July 1, 2004. New Rule 16.1, and associated changes, can be found here, albeit in blackline form. Monday, December 1, 2003 The supreme court decided three cases in addition to the redistricting decisions. It also granted cert. in four cases. Scroll down past the redistricting discussion for more on those decisions and grants. General Assembly's redistricting violated the state constitution (in other words, "re-redisricting" is a "no-no"). The redistricting decision is here. The court's consolidated decision held: (1) The Attorney General may bring an original proceeding pursuant to C.A.R. 21 to challenge the constitutionality of Senate Bill 03-352, a congressional redistricting law enacted by the General Assembly to replace the court-ordered congressional districts applied in the 2002 general election. (unanimous) (2) Senate
Bill 03-352 is unconstitutional because the Colorado Constitution requires
the General Assembly to redistrict after each census and before the
ensuing general election, and does not allow redistricting at any other
time. Because the General Assembly failed to redistrict during this
constitutional window, it relinquished its authority to redistrict until
after the 2010 census. (5-2) The court expressly decided both issues as a matter of state law and emphasized that fact several times in the opinion. That makes it unlikely the United States Supreme Court will review the case. Justices Kourlis and Coats dissented in the redistricting decision, but agreed that the attorney general may initiate an original proceeding to contest the constitutionality of legislative action. Here are some quotations of interest from the court's decision: On the attorney general's power to challenge the redistricting: "Under this court's jurisprudence, ordinary taxpayers would have standing to challenge the constitutionality of the 2003 redistricting statute in an original proceeding. The Attorney General, as an ordinary taxpayer, could raise this case; therefore, he should also be able to petition this court in his capacity as chief legal officer of the state of Colorado." "The constitutional separation of powers prevents the General Assembly from enacting any statutes that restrict this court's exercise of its original jurisdiction. Hence, it is irrelevant that no statute authorizes the Attorney General to file his petition." "The Secretary of State also makes an historical argument to support her position, placing great emphasis upon the fact that Colorado adopted the English common law of 1607 into its body of laws. § 2-4-211, 1 C.R.S. (2002); Bieber v People, 856 P.2d 811, 815 (Colo. 1993). In 1607, England's Attorney General was subject to the wishes of the crown, and could not independently institute actions against it. 6 W. Holdsworth, History of English Law, 457-61 (2d ed. 1971). The Secretary of State posits that the Attorney General is similarly subject to the wishes of the executive branch. This argument does not persuade us. Although Colorado has incorporated the common law of 1607, we find its transposition to Colorado, where executive power is intentionally diffused among several officers, is necessarily approximate. The Attorney General acts as the chief legal representative, not of a king, but of the state. Therefore, the common law applies only to the extent that it is consistent with the Colorado Constitution. As section 2-4-211 states, Colorado adopts the common law of 1607 insofar as it is 'applicable and of a general nature.'" "In his role as legal advisor to the Secretary of State, the Attorney General must advise the Secretary of State on the implementation of the election laws. Consistent with his ethical duties and his oath of office, if the Attorney General has grave doubts about the constitutionality of the impending 2004 general election, he must seek to resolve these doubts as soon as possible. A prompt resolution of the case will aid both the Secretary of State and the Attorney General in fulfilling their oaths to uphold the Colorado Constitution. For these reasons, we find that the Attorney General has the authority to file this original action challenging the constitutionality of SB 03 352." On the validity of the redistricting: "Article V, Section 44, of the Colorado Constitution . . . restricts the timeframe in which Colorado may redistrict. The plain language of this constitutional provision not only requires redistricting after a federal census and before the ensuing general election, but also prohibits the legislature from redistricting at any other time." "[T]he U.S. Constitution does not grant absolute redistricting authority to the General Assembly as the Secretary of State and the General Assembly claim, and when courts are forced to draw congressional districts, they are not usurping the state legislature's power." "[T]he term "General Assembly" in the first sentence of Article V, Section 44 [of the Colorado Constitution], broadly encompasses the legislative process, the voter initiative, and judicial redistricting. Regardless of which body creates the congressional districts, these districts are equally valid. Hence, judicially created districts are no less effective than those created by the General Assembly." "[T]he plain language of Section 44, the General Assembly's past redistricting customs, and the General Assembly's own interpretation of Section 44 all demonstrate that the framers of the Colorado Constitution intended that congressional districts must only be drawn once per decade." "[T]he framers of the Colorado Constitution intended to balance stability and fairness by both requiring and limiting redistricting to once per decade. Had they wished to have more frequent redistricting, the framers would have said so. They did not." "[T]the General Assembly may only create a redistricting plan after the federal census (and the resulting congressional apportionment to the states) and before the ensuing general election. In this case, that would have been between April 1, 2001, when the U.S. Congress notified Colorado that it would gain an additional representative, and March 11, 2002, when the election process began. As we know, the General Assembly failed to act within this time frame. The fact that the courts were forced to create the 2002 redistricting plan in the absence of a valid legislative plan makes no difference. Congressional districts created by a court are equally effective as those created by the General Assembly and disruption of those districts triggers the same policy concerns. Consequently, the General Assembly's 2003 redistricting plan is not permitted by Article V, Section 44, of the Colorado Constitution because it is the second redistricting plan after the 2000 census. Hence, Senate Bill 03-352 is unconstitutional and void." The dissent: In her dissent, Justice Kourlis concluded that under Article V, section 44 of the Colorado Constitution, only the General Assembly has the power to redistrict, and the courts' involvement is limited to situations where the legislature has failed to redistrict: "We act only in the breach; once the legislature takes up its rightful mantle, our involvement is no longer necessary." Justice Kourlis also concluded that the supreme court should not have accepted original jurisdiction over the case: "In taking this case as an original proceeding, our court has violated two bedrock rules. First, this court does not interfere in the normal process of a case when the issues can be properly resolved below and the rights of all parties preserved. Second, this court does not resolve cases on constitutional grounds when non-constitutional grounds are raised and may be dispositive." In other cases today: Buckle up means buckle them all. Drivers and front seat passengers must wear both the lap and the shoulder belt if the car is equipped with them. Carlson v. Ferris Governmental immunity act requires "substantial compliance," not strict compliance. In addition, the court held that the GIA requires trial courts to resolve all immunity issues before trial, and therefore trial courts may conduct evidentiary hearings if necessary to determine facts related to immunity issues. Finnie v. Jefferson County Sch. Dist. R-1 An attorney does not violate a workers' compensation penalty statute, C.R.S. § 8-43-304, by advising an insurer to violate a lawful order, even if the attorney acts with fraud or malice. The penalty statute does not extend to a claim against an attorney who allegedly acts with fraud or malice in advising the client, an insurer, to violate a lawful order because the statute does not expressly provide for such a claim. Dworkin, Chambers & Williams, P.C., v. Provo Cert. granted. The court agreed to hear the following cases and issues: People v. Yascavage, No. 03SC559, will address these questions: Whether section 18-8-707(1), 6 C.R.S. (2003) (the “Tampering statute”), requires proof that the witness or victim was legally summoned to an official proceeding. Whether the General Assembly intended “legally summoned,” in the context of the Tampering statute, to mean “subject to legal process.” Click here for the court of appeals' decision. People v. McKinney, No. 03SC516, will answer these questions: Whether theft from an at-risk adult, as defined in Section 18-6.5-103(5), 6 C.R.S. (2002), is a penalty-enhanced form of theft, as defined in Section 18-4-401(1), 6 C.R.S. (2002). Whether the discovery tolling provision of the statute of limitations, Section 16-5-401(4.5), 6 C.R.S. (2002), applies to both theft and theft from an at-risk adult. Click here for the court of appeals' decision. People v. Melendez, No. 03SC494, will consider these issues: Whether excluding a defense witness’s testimony automatically rises to an issue of constitutional dimension. What is the breadth of the trial court’s discretion in determining the remedy for a sequestration order violation. Whether the court of appeals
erred in deciding an issue on constitutional grounds not raised by the
defendant, thus depriving the People of the opportunity to prove that
any error is harmless Click here for the court of appeals' decision. American Family Mut. Ins. Co. v. Allen, No. 03SC358, will review these questions: Whether the court of appeals improperly refused to address, on the merits, American Family’s assertion that the trial court had erred in granting a directed verdict against American Family and in denying American Family’s motion for a directed verdict on a PIP breach of contract claim based on the court of appeals’ determination that American Family had not stated its motion for directed verdict with sufficient clarity. Whether, under the circumstances and under binding precedent, including this court’s decision in Sachtjen v. American Family Mutual Insurance Co., 49 P.3d 1146 (Colo. 2002), the trial court, as affirmed by the court of appeals, erred in granting a directed verdict in plaintiffs’ favor on the PIP branch of contract claim and in denying American Family’s motion for directed verdict. Whether the court of appeals improperly ignored evidence in the record concerning the investigation done by American Family concerning ownership of the vehicle and erred in holding that no expert testimony was necessary, under the circumstances, to establish a first party bad faith claim because of an absence of investigation concerning ownership of the vehicle. Whether the trial court erred in denying American Family’s motion for directed verdict in connection with plaintiffs’ bad faith claim based on plaintiffs’ failure to present objective evidence of the standard of conduct in the insurance industry. The court of appeals' decision is here.
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