February 27, 2006 All right, I confess I have not yet posted the summaries of last Thursday's court of appeals decisions. I got through most of them on Saturday at home but forgot to send them to the office to upload (unfortunately, I am currently unable to update from anywhere but my office). And because I have a big summary judgment brief due Wednesday, it is most likely that the summaries won't be posted till Thursday. But hey, that'll give you something to read Thursday, since the court of appeals will be releasing only unpublished decisions then. I apologize for the delay and any inconvenience. The supreme court's announcements for today are here. The court issued one decision and did not grant cert. in any cases. A“tax extension”
is not the same as a “tax increase.” Consequently, the election
notice for a proposed tax extension need not meet the additional election
notice requirements that apply to tax increases. Justice Coats dissented,
stating that "Today the majority excuses a local government’s
calculated refusal to provide the notice required for proposed tax increases
by the popularly adopted Taxpayer’s Bill of Rights, holding that
the term 'tax increase' was never intended to February 24, 2006 The supreme court will issue one decision on Monday, No. 05SA365, Bruce v. City of Colorado Springs. February 23, 2006 Here are today's court of appeals announcements. The court issued 11 published decisions. Unfortunately, work commitments will keep me from summarizing those today or tomorrow, but I hope to get summaries posted by Monday. I have posted links to those cases. People
v. Montoya February 22, 2006 The court of appeals will release the following decisions tomorrow, including 11 published opinions: PUBLISHED OPINIONS No.: 03CA0696 People v. Nathan Montoya UNPUBLISHED OPINIONS No.: 03CA0836 People v. Gerald Eugene Watkins February 21, 2006 The United States Supreme Court reversed the decision of the three-judge district court in Lance v. Dennis, the federal action brought on Colorado's redistricting. The Court, without argument, in a per curiam 8-1 decision, concluded that the Rooker-Feldman doctrine did not bar the federal action. The supreme court announcements for today are here. The court issued three decisions, summarized below. The court also granted cert. in one case, Alexander v. Anstine, No. 05SC367, on these issues: Whether Colorado law recognizes a fiduciary duty owed by an insolvent debtor’s officer to the debtor’s creditors and, if so, whether 11 U.S.C. § 544(a) and Colorado law permit a bankruptcy trustee, acting as a hypothetical judgment lien creditor, to sue the debtor’s lawyer for aiding and abetting the debtor’s officer breach this fiduciary duty.
Whether a lawyer can be liable for aiding and abetting a breach of fiduciary duty of his client’s officer to a non-client. The court issued these decisions today: In this Interlocutory Appeal, Justice Hobbs, Justice Martinez, and Justice Bender were of the opinion that the trial court ruling granting the defendant’s motion to suppress should be affirmed; whereas Chief Justice Mullarkey, Justice Rice, and Justice Coats were of the opinion that it should be reversed. Since the court is equally divided, the trial court ruling granting the defendant’s motion to suppress is affirmed by operation of law. See C.A.R. 35(e). People v. Micciulli Supreme court
concludes probate court abused its discretion in disqualifiying law
firm as a sanction. The court said, "Because the disqualification
of a party’s chosen attorney is an extreme remedy, appropriate
only where required to reserve the integrity and fairness of judicial
proceedings, it must be supported by a showing not only that the proceedings
appear to be seriously threatened, but also by a showing that any remedy
short of disqualification would be ineffective. While we have never
imposed a mechanical hearing requirement on motions to disqualify, justification
for this extreme remedy will often require particularized factual findings."
The court found no such findings and therefore remanded. The supreme court holds that the tort of negligent hiring, when applicable under the circumstances of a particular case, can operate to hold an employer liable for intentional or negligent acts of an employee that are within or outside of the scope of employment. Under the facts of this case, however, the court held that the trial court should not have submitted the negligent hiring claim to the jury; having done so, it should have granted judgment in favor of the employer notwithstanding the verdict. The accident that gave rise to the lawsuit occurred after the employee had finished his work day. The scope of the employer's duty to the Raleighs under the tort of negligent hiring did not extend to the Raleighs because the job for which it hired the employee did not include driving to and from work. Raleigh v. Performance Plumbing
February 20, 2006 The court of appeals' oral argument calendar for April is here. The supreme court's oral argument calendar for March is here. I'm back. I was out of town on business most of last week, and was unable to do updates. So I'm playing catch-up today. Below are the court of appeals' announcements from last Thursday (unpublished decisions only) and summaries of the supreme court cases from last Monday. The supreme court will issue three new decisions tomorrow. Today is a legal holiday. Tomorrow the supreme court will issue the following decisions: 05SA290 People
v. Micciulli (no orals) Here are the summaries of the supreme court's decisions from Monday, February 13: In this guardianship dispute brought under C.A.R. 21, the court considers the effect of an objection to a testamentary appointment under C.R.S. 15-14-203(1). The court holds that an objection filed under C.R.S. section 15-14-203(1) triggers the judicial appointment statute. Section 15-14-204 conditions the judicial appointment of a guardian on a finding that the appointment will be in the minor's best interest. The court concludes a judicial appointment made subsequent to an objection to a testamentary appointment must utilize the best interest of the child standard. Hence, a testamentary nomination is not binding where the trial court determines that a party with the care or custody of the minor is better suited to act as guardian. The court remanded to the trial court with directions to appoint a guardian based on the best interest of the child. In re the Matter of R.M.S. The court holds that Crawford v. Washington does not apply retroactively to cases involving postconviction proceedings that concern convictions finalized before Crawford. The court holds that Crawford announced a new rule of criminal procedure. The court also adopted the test articulated by the U.S. Supreme Court in Teague v. Lane, which establishes exceptions to the general rule that new rules of criminal procedure do not apply retroactively to cases on collateral review. Under Teague, the court holds that the new rule announced in Crawford does not constitute a watershed rule of criminal procedure, and therefore does not apply retroactively to cases on collateral review. Edwards v. People Colorado's sentencing and criminal restitution statutes require trial courts to include prejudgment interest in orders of restitution as a condition of probation to fully compensate victims for loss of use of money from the time the money is stolen to the time a restitution award is entered. Because postjudgment interest on the restitution amount awarded has the statutory purpose to encourage speedy payment of the restitution order, which is different from the purpose of prejudgment interest, a trial court must impose both prejudgment interest and postjudgment interest in probationary restitution orders. Roberts v. People The court of
appeals announcements for last Thursday, February 16, are here.
The court issued only unpublished decisions. February 15, 2006 Governor Owens appointed Allison Eid to the supreme court today. Congratulations to soon-to-be Justice Eid. I wish her many years of great service to the court and the People. February 13, 2006 Here are today's supreme court announcements. The court issued three decisions, which I will try to summarize today if possible (links to the cases are below). The court also granted cert. in one case, No. 05SC814, ICAO v. Stefanski, on this question:
Whether, in cases where a claimant has successfully challenged an initial MMI rating through the DIME process, the claimant must request a follow-up DIME in accordance with sections 8-42-107, 107.2, in order to challenge the subsequent MMI rating. In
re the Matter of R.M.S. February 10, 2006 The supreme court will issue these three decisions on Monday: 05SA308 In re the Matter of R.M.S. (no orals) February 9, 2006 The court of appeals' announcements for today are here. The court issued seven published decisions, summarized below Court rejects defendant's claim that the strain created by a considerable period of solitary confinement created a fair and just reason to withdraw his guilty plea. But the trial court erred in not appointing conflict-free counsel for sentencing. Counsel that had testified adversely to the defendant in a hearing on defendant's motion to withdraw his guilty plea could not represent defendant at sentencing. People v. Finley Trial court did not err in denying defendant’s motion to modify the conditions of his probation to exclude genetic marker or DNA testing and to declare C.R.S. § 16-11-204.3 unconstitutional. That statute requires that an offender convicted of second degree burglary submit a biological substance sample for chemical testing as a condition of his or her probation. The test results are compiled in DNA databases. The court rejected the argument that the statute violated the rights of probationers under either the Fourth Amendment or Art. II § 7 of the Colorado Constitution. People v. Rossman Under the plain language of C.R.S. § 18-1-105(10), if a defendant was sentenced pursuant to a mandatory sentencing provision, the district court had no power to suspend the sentences, and therefore, the sentences were illegal. The court held the defendant was in fact sentenced under a mandatory provision. The trial court imposed eight-year sentences to DOC incarceration, and then purported not to execute those sentences by immediately suspending them, conditioned on the successful completion of the Cenikor program. The court held that the suspension of the sentences was inconsistent with the plain language of § 18-1-105(10) that “in no instance shall the court have the power to suspend a sentence to a term of incarceration when the defendant is sentenced pursuant to a mandatory sentencing provision." Therefore, the sentences were illegal, and the trial court erred in not allowing the defendant to withdraw his guilty plea. People v. Hummel Court of appeals
holds that abuse of discretion standard applies to trial court's findings
of lack of good cause to exceed the statutory damages cap. The court
also concluded the trial court properly put the burden of showing good
cause and unfairness under the statute on the party seeking to exceed
the cap. Wallbank
v. Rothenberg Letter that showed that insurance company agreed to pay plaintiffs under the insurance policy if the parties entered into a settlement agreement, did not constitute consent to judgment. In addition, declaratory judgment action federal court did not create claim preclusion. Ross v. Old Republic Insurance Company In an important case addressing issues of children's religious upbringing and the power of the courts to make orders about them in the context of child custody issues, the court first addressed a number of procedural issues. The court rejected mother’s contention that because a complete transcript of proceedings cannot be reconstructed from recollection with any degree of accuracy or to the parties’ satisfaction, the procedure set forth in C.A.R. 10(c) is inadequate to protect her due process right to a meaningful appellate review. The court noted that if a party fails to attempt to reconstruct the record as required by C.A.R. 10(c) and (e), that party may not thereafter complain that the record is inadequate. The court also rejected the mother's argument that the lack of a transcript constitutes both an “irregularity in the proceedings” and an “accident or surprise” to her, necessitating a new trial under C.R.C.P. 59(d)(1) and (3). Nor was the missing transcript a "clerical error" that could be remedied under C.R.C.P. 60(a). Turning to the merits, the court did agree that insofar as the permanent orders adopt the special advocate’s recommendation restricting mother’s right to take the child to her church, unless she supports the religion chosen by father for the child, they are unconstitutional. With respect to portions of the orders that subject the child’s religious upbringing to other recommendations of the special advocate, the court remanded for further findings on a compelling state interest. The court did not address the constitutionality of C.R.S. § 14-10-101. The court did agree in part with the mother's assertion that thetrial court misapplied C.R.S. § 14-10-124 and violated her constitutional rights by giving father sole decisionmaking authority as to the child’s religion and adopting recommendations of the special advocate that restrict her from providing religious education for her child. There's much more to this case, which is a must-read for family law attorneys. In re the Marriage of McSoud Court rejects
argument that an award of death benefits was improper because decedent’s
death was caused by nonindustrial coronary artery disease and did not
proximately result from the occupational disease. The court rejected
the position that the ALJ was required to find that February 8, 2006 The court of appeals will release the following decisions tomorrow, including 7 published opinions: PUBLISHED OPINIONS No.: 03CA1907 People v. Joseph Finley UNPUBLISHED OPINIONS No.: 03CA1819 People v. Christian R. Hoschouer February 6, 2006 Today's supreme court announcements are here. The court issued no decisions, but did grant cert. in the following case: People v. Roberts, No. 05SC764, on this question:
Whether the court of appeals erred in dismissing this case on speedy trial grounds. The court also granted cert. in People v. Rogers, No. 05SC447, and remanded to the court of appeals for reconsideration in light of People v. Rockwell, 125 P.3d 410. February 3, 2006 The supreme court will issue no decisions on Monday, but it will issue orders on cert. petitions. February 2, 2006 Happy Groundhog Day! As you may or may not know, I have a soft-spot for Marmota monax (the groundhog's scientific name). Though the woodchuck (as it is more affectionately known) may be disliked for predicting, against its will, six more weeks of winter (an unfair task given the timing of the vernal equinox), the little creature should be viewed fondly, if not as a hero, for its selfless contributions to the prevention and treatment of Hepatitis B. The court of appeals' announcements for today are here. The court issued unpublished decisions only. February 1, 2006 The Supreme Court Nominating Commission has selected three finalists for the vacancy on the supreme court. The finalists are Judges John Dailey and Russell Carparelli, both currently judges on the court of appeals, and Allison Eid, currently Colorado's Solicitor General. The press release from the court is here. Governor Owens has until February 16th to appoint one of the three. I still am not sharing my prediction of who will get the appointment, but I will say that my prediction has a chance of being correct. (And I did predict that John Roberts would be the next Chief Justice of the United States--I even have an e-mail to prove it. But I'm not sharing that either.) The court of appeals will release the following unpublished decisions tomorrow: UNPUBLISHED OPINIONS No.: 03CA0759 Bruce S. Vanderpool v. Allstate Insurance Company
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