February 29, 2008 The supreme court will issue these four decisions on Monday: 07SA310 In re Sanctuary House v. Krause 06SC454 People v. Rickman 06SC555 Kruse v. McKenna 06SC823 Matoush v. Lovingood February 28, 2008 Here are today's court of appeals announcements. The court issued only unpublished decisions. The supreme court recently issued a rule to show cause in No. 08SA6, In re Garcia v. Kable Fulfillment Services, Inc., as follows: Synopis: On January 16, 2008, the court issued a rule to show cause why the requested relief should not be granted. Respondents Kable Fulfillment Services, Inc. and Kable News Company, Inc. are directed to provide a written answer on or before February 15, 2008. Petitioner Garcia has thirty days from receipt of the answer within which to reply. February 27, 2008 Tomorrow the court of appeals will release only unpublished opinions. Here's the list of decisions the court will issue: 02CA2388 People v. Christopher Salazar Cabias February 25, 2008 Here are today's supreme court announcements. The court issued two decisions, summarized below. The court granted cert. in one case, and the question presented in that case follows the summaries. In an appeal involving Amendment 41 of the Colorado Constitution, “Ethics in Government,” (codified as Colo. Const. art. XXIX), the supreme court held that Plaintiffs failed to present a ripe as-applied constitutional challenge to the Amendment’s gift bans because the Amendment’s ethics commission is not yet in existence, and it has not yet had the opportunity to implement the Amendment. Because the district court did not have the jurisdiction to grant a preliminary injunction, the court reversed the district court’s order and directed the district court to vacate the injunction. The supreme court recognized that Governor Ritter, as a personification of the state, is a proper party defendant in this case. The court also held that Amendment 41 is self-executing because the Amendment’s independent ethics commission was intended to implement and enforce its provisions, separate and apart from any further action of the legislature. The court, therefore, upheld the district court’s denial of the motion to dismiss on the proper party and self-execution issues. The court did not address the merits of the other issues on appeal, because the Plaintiffs' claims are not yet ripe. Developmental Pathways v. Ritter In a split decision, the supreme court upheld the disbarment of Susan G. Haines. Based on the court's independent review of the record, the court determined that clear and convincing evidence supported the Hearing Board’s findings of fact and conclusions of law that Haines knowingly misappropriated funds of her client estate. The court reduced the amount of restitution ordered from $70,000 to $65,000 to account for an amount of money the personal representative authorized Haines to withdraw. The court disapproved of the Hearing Board’s conclusion that Haines misappropriated funds of her co-counsel. Justice Coats, joined by Justice Rice, dissented, and some of his language is worth quoting directly: "While I consider the discipline meted out today to be out of all proportion to any misconduct proven below, I am even more concerned about what I perceive to be the exaggerated deference shown by the majority to the machinery we have ourselves created to assist in supervising and regulating the profession. Despite acknowledging (as it must) the hearing board’s fundamental legal error in characterizing the settlement funds deposited into the estate account, the majority continues to treat as near sacrosanct the board’s factual and credibility assessments (which I believe to be incurably tainted by that error) and attempts to mold these findings into a theory of wrongdoing quite distinct from that found by the board, although equally unsupported by the record. Most of all, however, I am concerned that the process of attorney regulation not become a weapon in the struggle among attorneys for client control and apportionment of legal fees, something I believe we will all come to regret." Justice Coats ultimately concluded, "From the record before us I am unable to say what, if any, sanctionable conduct was committed by Haines, much less what the sanction for it should be. Because it seems clear to me, however, that the record does not support a finding, by clear and convincing evidence, that she knowingly converted the property of either her client or her co-counsel, I would reverse the board’s order of disbarment and remand for any further proceedings that might be justified under a correct interpretation of controlling law." In re the Matter of Haines The court granted cert. in No. 07SC874, Chotvacs v. Lish, on this issue: Whether the Dispute Resolution Act, sections 13-22-301 to 13-22-313, C.R.S. (2007), requires that a settlement agreement reached through mediation be in writing and signed by all parties in order to be enforceable. February 22, 2008 The supreme court's oral argument calendar for March is here. The court will hear arguments on March 6. The supreme court will issue two decisions on Monday, No. 07SA181, Developmental Pathways v. Ritter, and No. 06SA146, In re the Matter of Haines. The court of appeals announced three new judgeships created by House Bill 07-1054. The press release is here. February 21, 2008 Here are today's court of appeals announcements. The court issued 12 published decisions, summarized below. Trial court erred in granting the prosecution’s motion in limine to preclude defendant from presenting another individual could have killed the victim. Under the facts of the case, the court concluded that the evidence pertaining to the alternate suspect was sufficiently relevant to the issue of the perpetrator’s identity to render it admissible. Thus, the trial court should have permitted defendant to offer testimony about the alternate suspect, and therefore defendant was entitled to a new trial. People v. Muniz Because C.R.S. § 14-10-129(4) provides that a motion “shall” be heard and ruled upon “not later than seven days after the day of the filing of the motion,” the plain language of the statute indicates that this provision was intended to be mandatory. Therefore, in the event the trial court fails to conduct a hearing within seven days of the filing of a § 14-10-129(4) motion as required by the statute, the automatic sanction of supervised visitation terminates. But the termination of the sanction does not deprive the court of authority to proceed under C.R.S. § 14-10-129(1)(b)(I), and the court upheld the reduction of parenting time under that provision. In re Marriage of Slowinski An objection to the relevance of evidence (under CRE 401, 402) does not include an objection that the evidence is unduly prejudicial (under CRE 403). Therefore, the plaintiff failed to properly preserve its objection. American Family Mutual Insurance Company v. DeWitt Husband built a log cabin. The trial court classified the log cabin as "marital property." Husband contended he gave the logs and cabin shell to his parents during the marriage, and that wife’s objection to his doing so did not preserve her right to have this property classified as “marital property” under the Uniform Dissolution of Marriage Act. The court of appeals agreed. The intent of the husband's father to bequeath the cabin to husband and wife did not prove that father had gifted the cabin back to husband and wife. Therefore, the cabin was not marital property. In re Marriage of Schmedeman In determining amount of final judgment for purposes of offer of settlement under C.R.S. § 13-17-202, prejudgment interest is included, but costs are not. Therefore, the trial court erred in including costs in calculating amount of final judgment. Novak v. Craven Trial court erred in sealing criminal records under C.R.S. § 24-72-308. While a felony charge had been dismissed to allow the filing of a misdemeanor, and though the later-filed misdemeanor charge had also been dismissed, the statute of limitations had not yet run for re-filing misdemeanor charge. Therefore, it was error to seal the records at this time. Warren v. People An extension or modification of probation is not analogous to a probation revocation proceeding. Although an extension or modification of probation usually occurs when a defendant has violated a condition of his probation, it occurs prior to the commencement of revocation proceedings and provides a defendant with another opportunity to complete his probation without having it revoked. Thus, a consent to extend probation merely continues a defendant’s status on probation, and, should the defendant eventually be faced with revocation proceedings, he would then be entitled to the limited due process requirements attendant to that procedure. Therefore, due process concerns are less significant in probation extension proceedings than in probation revocation proceedings because an extension of probation does not entail as grievous a loss as that at stake in revocation proceedings. Due process does not require that a defendant be advised of, or receive counsel, before requesting an extension of probation and waiving a hearing. People v. Hotle The court of appeals rejected an argument that Colorado’s statutory and regulatory definitions of “special needs” are narrower than the federal statutory definition and are therefore preempted. It therefore upheld the final agency decision. Sapp v. El Paso County Department of Human Services In a simple negligence action brought on behalf of his or her child, the parent can be designated as a nonparty at fault under C.R.S. § 13-21-111.5. The statute provides no exceptions other than for co-conspirators, and thus does not barring naming parents as nonparties at fault. The court rejected an argument that the qualified parental immunity doctrine bars the designation of parents as nonparties at fault. Paris v. Dance Movie theaters' transactions with film distributors were taxable events subjecting the movie theater to use tax. Cinemark USA, Inc. v. Seest Trial court erred in affirming sheriff's denial of a concealed handgun permit. The court of appeals, applying Michigan law, concluded that Plaintiff's conviction that had been set aside did not justify denial of a permit. Under Michigan law, Plaintiff would not to be considered convicted of the set-aside felony, unless he fit within a specified exception. Since none of the exceptions recognized by statute (or in an opinion by the Michigan attorney general) applied, Plaintiff could not be considered convicted of a felony under C.R.S. § 18-12-108(1). Therefore, he could not be denied the concealed weapon permit. Seguna v. Maketa In an appeal of the termination of parental rights, father contended the trial erred in not making a record of its telephone communication with a Rhode Island court. Under C.R.S. § 14-13-110(4) (part of the Uniform Child-Custody Juridsiction and Enforcement Act (UCCJEA)), a record must be made of all communications between courts concerning proceedings that arise under the UCCJEA except for those involving schedules, calendars, court records, and similar matters. The court of appeals noted that the Rhode Island court made a transcript of its hearing on the issues of father’s pending motions and jurisdiction. That transcript contained information that the Colorado court had communicated to the Rhode Island court. The court held that this transcript is a record of the communication between the Colorado court and the Rhode Island court that satisfies § 14-13-110. The court upheld the termination of parental rights. People In the Interest of D.P. February 20, 2008 The court of appeals' oral argument calendar for April is here. The court of appeals will hold arguments February 26, at 9 a.m., at the Nucla Junior/Senior High School. The court will hear two cases: No. 07CA236, Sanderson v. Heath Mesa Homeowners association, appealing a trial court’s decision that plantiffs were too late in filing a lawsuit to recover damages they alleged were caused by a leaky pipeline the homeowners association built on their land; No. 05CA2108, People v. Macias, a second-degree murder appeal claiming ineffective assistance of counsel. The court of appeals will issue the following decisions tomorrow: Published Opinions 03CA0268 People v. Michael Muniz Unpublished Opinions 03CA2125 People v. Gregory L. Carter February 19, 2008 Here are today's supreme court announcements. The court issued one decision, summarized below. The court also granted cert. in two cases, and the issues in those appeals follow the case summary. By imposing liability on an issuer for unreasonable delay in registering a transfer of securities, C.R.S. § 4-8-401(b) not only imposes liability on the issuer for loss resulting from its unreasonable delay in removing a restrictive legend from a reissued certificate, but also displaces common law remedies for the same loss. The court therefore remanded with directions to reinstate the district court’s order of summary judgment. Clancy Sys. Int'l, Inc. v. Salazar The court granted cert. in these cases: Farmers Ins. Exchange v. Benzing, No. 07SC483, on these issues: Whether Colorado should extend the federal securities-law doctrine of “fraud-on-the-market” to relieve plaintiffs of the burden of proving causation of injury in class actions alleging non-securities claims such as insurance bad faith and violation of the Colorado Consumer Protection Act.
Whether a trial court is precluded from decertifying a class based on a ground that defendants did not assert at the initial certification hearing, where the evidence supporting that ground was not discovered until after the hearing.
Whether the court of appeals improperly reweighed the evidence and substituted its assessment for the trial court’s in reviewing the trial court’s decision to decertify a class. Villanueva v. People, No. 07SC954, on this issue: Whether the court of appeals properly affirmed the trial court’s decision to aggravate the defendant’s sentence based on the advisement given to him at his providency hearing and his admissions during his parole revocation hearing.
February 14, 2008 Happy Valentine's Day! Here are today's court of appeals announcements. The court issued only unpublished decisions. February 13, 2008 The court of appeals will issue the following unpublished decisions tomorrow: 05CA0189 People v. Douglas E. Wilson February 11, 2008 Here are today's supreme court announcements. The court issued no decisions, and did not grant cert. in any cases. February 8, 2008 The supreme court will issue no decisions on Monday, but will issue rulings on cert. petitions. Here are the summaries of yesterday's court of appeals published decisions: Where codefendants are tried together and a declarant who is a codefendant has not decided whether to testify, the trial court must presume the declarant-codefendant is unavailable for the purposes of CRE 804(a), even if that person is present in court. Otherwise, a declarant who is a codefendant could create error by becoming “available” by deciding to testify after hearsay statements against interest under CRE 804 were admitted into evidence. Therefore, it was not error to admit hearsay statements of the codefendant under 804(a). People v. Reed Defendant contended the trial court erred by not instructing the jury that it was required to find the vehicle was reasonably capable of being rendered operable in order to convict him of illegally driving or operating a vehicle under the DUI and DARP (driving with a revoked license) statutes. Although the court agreed that such an instruction is necessary when there is evidence indicating that the vehicle may not have been reasonably capable of being rendered operable, the court saw no error based on the undisputed evidence in the case. People v. VanMatre Trial court properly determined that an implied easement by necessity existed. In so holding, the court concluded that the unity requirement is satisfied if the grantor owns separate but contiguous parcels before conveying one of them. But the court concluded the trial court erred in finding a breach of warranty from the lack of access. The court concluded that the lack of access to real property does not constitute an “encumbrance” and therefore does not violates the covenant against encumbrances in a general warranty deed. Campbell v. Summit Plaza Associates In a case applying New Jersey law, the court concluded that where a fixed price contract has a differing site conditions clause, the contractor may be entitled to an equitable adjustment if subsurface conditions are materially different from those indicated in the contract. Thus, the trial court erred in concluding the contractor could not recover additional compensation for differing subsurface conditions simply because it had entered into a fixed price contract. The court rejected the argument that the contractor had assumed the risk of differing conditions. URS Group, Inc. v. Tetra Tech FW, Inc. Trial counsel operated under a conflict of interest throughout the trial court proceedings and therefore defendant had ineffective assistance of counsel. More important, the conflict of interest alleged here is not simply one of successive representation in unrelated matters. Defendant’s counsel represented another client who had also been accused of sexually assaulting the same victim. Counsel's representation of defendant and the other accused was concurrent for over five months before counsel withdrew from the other case case. The victim's initial accusation against defendant was closely related to, if not actually prompted by, the assault allegedly perpetrated by the other accused. And the other accused testified against defendant at trial in exchange for the dismissal of charges from which counsel initially defended him. Therefore, there was an actual conflict of interest, and counsel was ineffective. Thus, the trial court erred in not granting defendant's rule 35(c) motion. People v. Miera In a judicial review challenging the issuance of construction permits by the Air Pollution Control Division of CDPHE, Plaintiffs relied on C.R.S. § 25-7-115(2), which provides that the Division “shall cause a prompt investigation to be made” if a written and verified complaint is filed with the Division alleging that any person is failing to comply with the regulations, with an order, or with any term or condition of a required permit that has been issued. The court, however, agreed with Division that § 25-7-115(2) addresses enforcement of air quality laws and regulations, is not part of the permitting scheme, and does not create a separate permitting requirement under Colorado’s prevention of significant deterioration (PSD) air permitting program. The court therefore rejected plaintiffs’ contention that an investigation was required prior to or as a condition of issuance of a new permit. Citizens for Clean Air & Water in Pueblo and Southern Colorado v. Colorado Department of Public Health and Environment Circumstances relating to defendant’s status as an illegal alien subject to deportation were proper considerations in the sentencing court’s decision to grant or deny probation. People v. Hernandez-Clavel The lack of an express grant of authority in the Colorado Rules for Magistrates to award attorney fees on review does not divest or otherwise curtail the district court’s already existing authority to make such an award under either C.R.C.P. 107(d)(2) or C.R.S. § 13-17-102. The court remanded to the district court to determine the wife's entitlement to fees and costs. In re Marriage of Naekel Claimant's petition was untimely because it was not filed within 20 days of service of the ALJ's order by mail. The court rejected claimant's argument that C.R.C.P. 6(e) provides an additional three days for mailing and therefore his petition was timely. Judge Russel dissented, agreeing that the petition was untimely, but disagreeing with the conclusion that the ALJ lacked authority to consider claimant's motion for reconsideration. Judge Russel concluded that C.R.S. § 8-43-207(1)(i), gives the ALJ the authority to “grant reasonable extensions of time for the taking of any action contained in this article,” including allowing an extension of time for filing a petition for review. Judge Russel would have remanded for the ALJ to determine if the "good cause" standard for such an extension had been met. Speier v. Industrial Claim Appeals Office February 7, 2008 The court of appeals' announcements for today are here. The court issued nine published decisions and a lot more unpublished decisions. The list of decisions follows this post. I will try to get summaries of the published decisions posted in the next few days. Published Opinions 04CA2611 People v. Edgar Dewond Reed Unpublished Opinions 04CA1281 People v. Joseph C. Chavez February 6, 2008 Here are Monday's announcements from the supreme court. The court issued three decisions, summarized below. The court did not grant cert. in any cases. Reversing a suppression order, the supreme court held rejected the defendant's arguments that when he made several incriminating remarks immediately following his arrest, he was too intoxicated to knowingly and intelligently waive his right to remain silent. The supreme court held that when a defendant’s actions demonstrate lucidity and rationality, he makes the waiver knowingly and intelligently. The court concluded found that while a high level of intoxication is a factor for the court to consider in determining the validity of a Miranda waiver, it must consider the defendant’s other actions as well. Here, the trial court’s findings indicated that the defendant readily followed officers’ commands, comprehended the seriousness of being armed in the presence of the arresting officer, and expressly stated that he understood his Miranda rights. Thus, his level of intoxication did not invalidate the waiver of his right to remain silent. People v. Jewell The supreme court reversed the court of appeals’ order reversing defendant's convictions. The supreme court held that defendant's right to testify on his own behalf was not infringed by the admission of res gestae evidence during the People’s case-in-chief. The trial court did not err in holding the evidence admissible as res gestae evidence. Therefore, a line of Colorado cases regarding the constitutional implications of erroneously admitting certain evidence against a defendant did not apply. Because defendant could have chosen to testify on his own behalf without diminishing his right against self-incrimination, there was no impermissible burden on his right to testify on his own behalf. The admission of res gestae evidence during the People’s case-in-chief might have given defendant a tactical incentive to confront that evidence during direct examination if he had chosen to take the stand, thereby opening himself up to questions about it during cross-examination. But that strategic consideration has no bearing on his constitutional ability to choose whether to testify on his own behalf. People v. Skufca In a prosecution appeal of an issue of law, the supreme court held the rape shield statute, C.R.S. § 18-3-407, applies to evidence of a victim’s or witness’s prior or subsequent sexual conduct, reputation or opinion evidence about that witness’s sexual conduct, or evidence that a witness has a history of false reporting of sexual assaults, no matter the purpose for which the proponent intends to introduce the evidence at trial. The court therefore disapproved the lower courts' rulings that section 18-3-407 includes a “purpose” exception allowing evidence of a witness’s sexual history not being offered for the truth of the matter asserted to be admitted without having first to comply with the statute’s offer-of-proof procedure. In addition the court said that even when the trial court has determined at an in camera hearing that the proffered evidence is material and relevant, the evidence is then only admissible at trial, and not at any other public hearing. People v. MacLeod February 1, 2008 The supreme court will issue these three decisions on Monday: No. 07SA319, People v. Jewell, No. 06SC348, People v. Skufca No. 06SC705, People v. MacLeod Since tomorrow is Groundhog Day, but I'll be off, I'll give my annual shout out to Marmota monax a day early.
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