July 30, 2004 The supreme court will not issue decisions on Monday. But the court will rule on cert. petitions. I'm taking the day off Monday for my wife's birthday, so I won't update until Tuesday; but check back here Monday for the court's case announcements. Media files second stay request in Kobe Bryant rape shield hearing transcripts case. The stay application can be found here. SCOTUSBlog has this report on the stay application. Basically, the media takes issue with the pace of the proceedings in the Eagle County District Court, and in my view justifiably so. Justice Breyer's opinion, fairly read, requires a more expedited decision than it appears will be forthcoming from the district court. Here are the court of appeals case announcements from yesterday. The court issued nine published decisions, which are summarized below: C.R.S. § 18-3-407(1)(b) (part of the rape shield statute) applies only to evidence explaining the source or origin of physical evidence or condition, as indicated by the examples of "semen, pregnancy, [or] disease" in the first clause of § 18-3-407(1)(b). Therefore, evidence of a factually similar assault by another perpetrator that did not fall into this category of evidence was not admissible. The court vacated the defendant's sentence, however, concluding that he was improperly sentenced under the Colorado Sex Offender Lifetime Supervision Act (the Act) because the jury's verdict could have been based on a predicate act of sexual assault that preceded the Act's November 1, 1998 enactment date. People v. Kyle Where
victim was unavailable to testify because of her death and her death
was the result of the defendant's actions, the defendant forfeited his
right to claim a confrontation violation in connection with the admission
of the victim's statements. The definition of "controlled substance analog" in CRS§ 18-18-102(6), and as applied to defendant through CRS§§ 18-18-405 and 18-18-204(2)(g), was not unconstitutionally vague. The court held that the language of the statute was sufficiently clear to enable the defendant to know that pseudoephedrine is a controlled substance analog. People v. Frantz Where the trial court committed to the terms of a plea agreement that provided that the defendant had no criminal history, the trial court had to comply with the terms it accepted at the providency hearing. That the trial court had second thoughts about the wisdom of the deal (and therefore refused to abide by it) did not diminish its duty. The court of appeals noted that once the trial court chose to engage in the bargaining process and agreed to terms, it became obligated to comply with those terms, just as any other party to the agreement. It vacated the sentence and remanded for enforcement of the terms of the plea agreement. People v. Roy Trial court erred in its interpretation of CRS§ 18-6-801.5 by not requiring the prosecution to prove by a preponderance of the evidence that a prior act of domestic violence occurred. People v. Ma Trial court did not abuse its discretion when it removed the defendant from sex offender intensified supervision probation (SOISP) and placed him on intensified supervision probation (ISP). The court of appeals interpreted CRS §§ 18-1.3-1007 and 18-1.3-1008 to allow the trial court to exercise its discretion in determining whether and on what conditions a sex offender may be released from SOISP, so long as it takes steps to minimize risk to the public. On the facts of the case, the court of appeals found no abuse of discretion where the trial court determined that the public was adequately protected by defendant's ISP, and therefore the appellate court concluded it was not error to remove defendant from SOISP when the probation department refused to allow the commencement of treatment. People v. Valenzuela Because water rights are separate and distinct from rights in land, the right to use the ground water under a parcel of land does not, by itself, convey the right to use an easement appurtenant to that land. Therefore, the plaintiff's interest in ground water -- a property interest acquired after the creation of the easement appurtenant and completely distinct from any surface interest in the dominant estate -- does not entitle plaintiff to use a road easement on the servient estate. WRWC, LLC v. City of Arvada The statute of limitation for claims filed in district court under CRS § 24-34-402.5 (which generally forbids terminating an employee for engaging in lawful off-the-job conduct) is the two-year period of CRS § 13-80-102, not the six-month period set forth in § 24-34-403. The court of appeals reasoned that because the sole remedy for a violation of § 24-34-402.5 is a suit for damages in district court, the administrative procedures set forth in § 24-34-306 are not applicable to a claim under § 24-34-402.5. And, therefore, the six-month limitation period set forth in § 24-34-403 applies only to claims filed with the commission and not to claims filed in a district court under § 24-34-402.5. Galvan v. Spanish Peaks Regional Health A trial court's order compelling arbitration was not final and therefore should not have been certified under C.R.C.P. 54(b). Accordingly, the court of appeals dismissed the appeal of the order compelling arbitration. The court rejected the plaintiffs' argument that CRS§ 13-22-221(1)(a)violates equal protection because it permits an interlocutory appeal of a trial court's order denying a motion to compel arbitration, but does not permit the appeal of an order granting a motion to compel arbitration. The court held that a rational basis exists for the different treatment of orders on motions to compel. Ferla v. Infinity Development July 28, 2004 Here's the list of cases the court of appeals will release tomorrow. The court will issue nine published decisions and many more unpublished ones. I will get summaries up Friday, as tomorrow I will be out of the office tending to my basset hound. Here is Judge Ruckriegle's order on the release of the rape shield hearing transcripts in the Kobe Bryant case. The judge ordered the parties to confer and devise a plan to produce a joint, redacted transcript for release, guided by Justice Breyer's order from Monday. I'm not sure the judge's order will satisfy the media. It seems to me that the media has a strong argument that prohibiting the release of the full transcript, and instead permitting release of only the redacted transcript, is still a prior restraint. I'm sure this is not the last news on this issue. July 27, 2004 Justice Breyer denies without prejudice the media's application to stay the state court rulings on the rape shield hearing transcript in the Kobe Bryant case. His order is here. Justice Breyer concluded that the trial court's determination as to the relevancy of the rape shield material will significantly change the circumstances which led the media to file the stay application. He noted that he believed the release of the transcripts or portions thereof was "imminent." Accordingly, though he was aware of the important constitutional issues at stake, he concluded that a brief delay may permit the state courts to avoid the controversy at issue. He gave the media the right to re-file its application in two days and required the state to respond the day after the stay application is filed. July 26, 2004 The Kobe Bryant prior restraint case will be appealed to the United States Supreme Court. According to SCOTUSBlog, the media have filed an application in the United States Supreme Court for a stay (pending a cert. petition) of the Colorado Supreme Court's decision in the Kobe Bryant case last Monday.The application is designated Associated Press, et al., v. District Court for the 5th Judicial District of Colorado, No. 04A73. Click here for the SCOTUSBlog post. Susan
Festag named supreme court clerk. Ms.
Festag succeeds Mac Danford who retired
on June
30. She
has been the chief deputy clerk for the past 17 years. Here are today's supreme court announcements. The court issued no decisions, but did grant cert. in the following four cases: The Denver Publishing Co. v. Board of County Commissioners (related to the Tracy Baker case), addressing these two issues: Whether the court of appeals erred by finding that certain e-mails subject to the Colorado Open Records Act (CORA) were nonetheless exempt from disclosure because of the constitutional privacy rights of the government employees who generated the e-mails.
Whether the court of appeals erred when it held that certain public record e-mails were exempt from disclosure, when the records’ custodian did not assert that disclosure would cause a substantial injury to the public interest and the sole parties objecting to disclosure were the government officials who generated the e-mails. A.C. Excavating v. Yacht Club II Homeowners Ass'n, involving this issue:
Whether the court of appeals erred in holding that the homeowners association’s tort suit against the subcontractors alleging damages related to construction negligence was not barred by the economic loss rule as adopted in Town of Alma v. Azco Construction, Inc., 10 P.3d 1256 (Colo. 2000). Miller v. People, asking these questions:
Whether the district court erroneously ruled that a third party can validly consent to a search after the petitioner has expressly refused to consent to such a search.
Whether the district court erroneously failed to determine that a reasonable narcotics officer in the particular circumstances of this case would not have arrested the petitioner for outstanding traffic warrants absent an illegitimate motive. In re the Marriage of Chalat, addressing these issues: Whether the court of appeals erred in holding, contrary to the plain language of section 14-10-115(1.5)(c.5), C.R.S., that a father’s promise in a 1984 separation agreement to pay for all of his daughter’s college expenses could be reduced to the amount that the father would be required to pay under the child support guidelines.
If the separation agreement is subject to modification, whether the
court of appeals erred in holding that a reduction in the amount agreed
to be paid for college expenses does not require a showing of changed
circumstances, despite statutory provisions to the contrary. July 20, 2004 I will be unable to update for the remainder of the week. But so you won't be unfairly deprived, I am posting links that will get you through the rest of the week. On Wednesday, July 21, 2004, you will be able to view here the list of court of appeals decisions that will be released on Thursday. That list should be posted by the court of appeals sometime Wednesday afternoon. On Thursday, July 22, 2004, you will find the new court of appeals case announcements here. This link should be available by 8 a.m. on Thursday. The court probably will issue unpublished decisions only. July 19, 2004 The Kobe Bryant decision is here. The 4-3 decision held that that the district court's order against revealing the contents of the June 21 and 22 in camera rape shield proceeding transcripts is a prior restraint, but it is constitutional under the specific facts and context of the case. The majority concluded that the State has an interest of the highest order in providing a confidential evidentiary proceeding under the rape shield statute, because such hearings protect victims' privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault. But the majority narrowed the district court's ruling, concluding that the district court erred by ordering that recipients of the transcripts transmission delete the electronic transmission and destroy any copies. The court also ordered the district court to: (1) make its rape shield rulings as expeditiously as possible and promptly enter its findings of facts and conclusions of law thereon; (2) determine if some or all portions of the June 21 and June 22 transcripts are relevant and material and, therefore, admissible under the rape shield statute at trial; and (3) enter an appropriate order, which may include releasing to the recipients of the original transmission and the public a redacted version of the June 21 and June 22 transcripts that contains those portions that are relevant and material in the case, if any, and maintains the ongoing confidentiality of portions that are irrelevant and immaterial, if any. Justice Bender, joined by Justices Rice and Martinez, dissented. The dissent concluded that the district court's order was an unconstitutional prior restraint for two reasons: First, most of the private details of the alleged victim's sexual conduct around the time of the alleged rape, which is also the subject matter of the confidential hearings in this case, are already available through public court documents and other sources and have been widely reported by the media. Second, the media did nothing wrong in obtaining the transcripts. The dissent concluded that under "well-established prior restraint doctrine, these two factors alone require this Court to direct the district court to vacate its order immediately." The dissent criticized the majority for overemphasizing the importance of the state interest at stake and "virtually" ignoring the First Amendment guarantee that in all but the most extreme circumstances the media must be free to decide what it may or may not publish. An appeal to the United States Supreme Court seems likely. Whether the Court will enter the fray is another matter. But I'll keep you posted, either way. Today's supreme court announcements are here. In addition to the Bryant decision, the court granted cert. in two cases. In one of those, Cotter Corp. v. American Employers' Ins. Co., the court simply remanded to the court of appeals for reconsideration in light of Cotter Corp. v. American Empire Surplus Lines Ins. Co. The other case, Lee v. People , presents this question: Whether the trial court erred when it found that a juror who could understand English but could not read or write English must be disqualified pursuant to section 13-71-105(2)(b). July 16, 2004 The court of appeals announcements from yesterday are here. The court issued eight published decisions and a bunch of unpublished ones. Here are the summaries of the published decisions: Crim. P. 16(V)(c) applies only to "material discoverable." The rule does not address costs for materials the court determines are not discoverable. Therefore, a defendant was not required to pay costs for materials to be reviewed in camera. Any other reading of Crim. P. 16(V)(c) would require defendant to pay for materials he might not be allowed to review. People v. Trujillo To
establish discriminatory effect in a motion for discovery on a selective-
enforcement claim based on race, the defendant must provide credible
evidence that a similarly situated individual of another race or ethnicity
could have been subjected to the same law enforcement action as the
defendant, but was not. Plaintiffs
did not comply with the C.R.S. §24-10-109(6) requirement of waiting
at least ninety days from the date of providing written notice of claim
before instituting suit, where plaintiffs filed amended complaint before
90-day period expired. But
the plaintiffs' noncompliance was not a jurisdictional bar to their
claims; instead on remand, the case must be stayed for the 90-day period.
Dicke
v. Mabin Crawford v. Washington is not a "watershed" rule of criminal procedure under Teague v. Lane. Therefore, Crawford does not apply retroactively to cases on collateral review where the defendant's conviction became final before Crawford was announced. People v. Edwards
Under Colorado law, either the board of directors or the shareholders can determine the number of directors of a corporation. A corporate bylaw granting that power exclusively to the board of directors is contrary to Colorado law and therefore void. Harding v. Heritage Health Products Because a person eighteen years of age or older can be sued in a parental rights termination action and can make decisions concerning his or her child in such an action, defining "minor" in CRS§ 19-3-602(3) as a person under the age of twenty-one years would be inconsistent with CRS§ 13-22-101 and the definitions of "child" and "adult" in the Code. Therefore, the context of § 19-3-602(3) requires that "minor" be defined as a person eighteen years of age or older. Accordingly, a mother who was 18 at the time a dependency and neglect petition was filed had no right to appointment of guardian ad litem. People in the Interest of L.A.C. A court may not invoke its equitable authority under C.R.C.P. 70 to direct a third party to perform an act for or in the place of a party who was not ordered to perform the act and did not violate a court order by failing to do so. Therefore, where husband was not ordered to comply with wife's request that he execute documents permitting her to modify the terms of the mortgage on the marital home, husband's failure to execute the documents was not a violation of a court order, and the trial court could not order the clerk of court to execute the documents needed to modify the terms of the mortgage. Marriage of Dauwe July 14, 2004 Here's the list of cases the court of appeals will release tomorrow. The court will issue eight published decisions and many more unpublished ones. I may not have summaries until Friday, as I will be out of the office tomorrow. July 13, 2004 The September oral argument calendar for the court of appeals is here. Happy Birthday Josh! July 12, 2004 The Arapahoe County District Court's decision in People v. Nathan Dunlap is here. The court denied Dunlap's motion for post-conviction relief. For those of you who are not familiar with the case, Dunlap was convicted of the 1993 murders of 4 people at a Chuck E. Cheese restaurant in Aurora, and sentenced to death. The decision is nearly 400 pages, so be patient in accessing it. Today's
supreme court announcement (yes, only one) is here.
The
court slightly modified its opinion in Stell v. Boulder County Dep't
of Soc. Serv. The modified opinion, and the blacklined version,
are here.
The court issued no
decisions and neither granted nor denied any cert. petitions. July 9, 2004 The supreme court will issue no new decisions on Monday, but will release an announcement sheet. I will have a link to that on Monday, and will have the questions presented in any appeals for which the court grants cert. July 8, 2004 Here are today's case announcements from the court of appeals. The court issued unpublished decisions only. July 7, 2004 The list of cases the court of appeals will decide tomorrow can be found here. The court will issue unpublished decisions only. An interesting article on the Lisl Auman case appears in the June 21 edition of the National Law Journal. NLJ subscribers should check it out. July 6, 2004 Here are today's case announcements from the supreme court. The court issued no decisions and did not grant cert. in any cases. July 2, 2004 The supreme court will issue no new decisions on Tuesday, July 6, 2004. But the court will put out a case announcement list. If cert. is granted in any cases, I'll let you know. Have a Happy and safe Fourth of July weekend. I'm back. Sorry about the delay in updating, but I was out of town this week on business. I hope to get the backlog cleared up today. Here are the court of appeals case announcements from yesterday. The court issued nine published decisions and many unpublished ones. The published decisions are summarized below. In a vehicular homicide case, the trial court properly refused defendant's tendered instructions on independent intervening cause because the defendant did not make the threshold showing necessary to support that affirmative defense. The alleged intervening cause was the victim's act of backing out of her driveway into the residential street on which the accident occurred. Because there was no evidence that anything the victim did amounted anything more than simple negligence, the defendant was not entitled to his tendered instructions. People v. Marquez Trial court did not abuse its discretion by providing the jury with equipment to allow it to replay audiotapes that were admitted into evidence. The court also held that a search warrant executed seven days after it issued was not stale. People v. Russom, Sr. In
criminal escape statute, placement of the mental state "knowingly"
after the element of "following a conviction of a felony"
and before the element of "escapes from custody or confinement"
evidences the General Assembly's intent to limit the culpable mental
state only to the conduct element of the offense. Therefore,
the jury need not find beyond a reasonable doubt that the defendant
knew he had been convicted of a felony at the time of his escape. The
trial court thus properly rejected the defendant's request for an instruction
to that effect. People
v. Benzor In a negligence action arising out of an auto-pedestrian accident, award of actual damages to Plaintiff for lost income due to injury and cost of subsequent medical treatment was necessarily inconsistent with a finding that Plaintiff suffered no compensable pain and suffering or loss of enjoyment of life, given the undisputed evidence that she suffered pain and inconvenience from the medical treatment (for which the jury awarded damages). Therefore, the court remanded for a new trial on damages. Peterson v. Tadolini Where a defendant was charged with the class three felony of second degree burglary of a "dwelling," but was not charged with, nor was the jury instructed on, the class four felony of second degree burglary of a "building or occupied structure," the marital privilege was not available to defendant. The marital privilege is available for the class four felony but not the class three felony. Since the defendant was not charged with the class four felony, the privilege could not apply. Accordingly, his counsel was not ineffective in failing to raise the marital privilege issue. People v. Ford Defendant was not entitled to a preliminary hearing in county court because he was not in custody. Therefore, the district court erred in granting a preliminary hearing and then dismissing the case when the prosecutor could not proceed at that hearing. The court of appeals ordered the charges reinstated. People v. Taylor Husband's spousal abuse of wife did not, as a matter of law, disqualify him from being named the legal father of a child born during the marriage to whom he was not the biological father. Because of the trial court's determination that the husband was the legal father, the biological father's status became that of nonparent. Therefore, he was not entitled to parenting time. I expect this case will be taken to the supreme court, and review may well be granted. In re Marriage of Ohr In the highly charged "two moms" case, the court of appeals concluded that "in light of the overwhelming evidence" showing that the mother's former domestic partner had become a psychological parent, whom the child recognized almost from birth, the trial court did not violate the mother's constitutional rights by allowing joint parental responsibilities to mother and her former partner. The court remanded to the trial court, however, on the "religious restriction" issue. (The trial court had held that the mother could not expose the child to "religious upbringing or teaching . . . that can be considered homophobic.") The court of appeals concluded that it could not determine from the findings whether the trial court applied the correct standard in limiting Clark's right to determine the child's religious upbringing. In ordering a remand, the court of appeals also said that considering the passage of time since the permanent orders hearing, the trial court may choose to hold a new hearing focused on the "the current status of the parties . . . in light of the standards announced in this opinion." I expect we haven't seen the last of this case by a long shot. People in the Interest of E.L.M.C. In workers' compensation case, apportionment of liability attributable to the natural aging process is not improper and does not invite age discrimination. Duncan v. Industrial Claim Appeals Office Here are summaries of the supreme court's decisions from Monday: Where disciplinary counsel properly investigated the facts and the law, and properly represented both in complaint against attorney, disciplinary judge's finding that Rule 11 was violated could not stand. In re Trupp Joint tenant who unilaterally conveys his interest in real property back to himself, with the intent of creating a tenancy in common, effectively severs the joint tenancy as to that joint tenant and the remaining joint tenant or tenants. Justice Coats dissented, concluding, "Today the majority abrogates a limitation on the ability of a joint tenant to defeat his co-tenant's right of survivorship, which has been the law of this jurisdiction since before statehood." Taylor v. Canterbury A trial court errs in refusing a defendant's requested instruction on the provocation mitigator when the defendant shows some supporting evidence to establish each element of the second-degree murder mitigator contained in C.R.S. §18-3-103(3)(b). In addition, when a defendant is entitled to a self-defense instruction and is not the initial aggressor, if the facts of the case raise the issue of retreat, the trial court errs unless it tailors the self-defense instruction to the particular facts of the case and instructs the jury on the doctrine of no-retreat. Because of these trial court instruction errors, the supreme court reversed and remanded. Justice Coats, joined by Justice Kourlis, dissented, concluding that there was no evidence "whatsoever from which reasonable jurors could find the killing to be justifiable, or even to be explainable as the result of an irresistible passion provoked by the victim." Cassels v. People In medical malpractice
action raising a dozen or so issues, the supreme court held (1) plaintiffs
have standing to raise constitutional challenges to the Health Care
Availability Act; (2) the periodic payment requirement of CRS§
13-64-205(1)(f) is not unconstitutional; (3) the Health Care Availability
Act damages caps of § 13-64-302(1)(b) (total damages limited to
$1,000,000 per patient and noneconomic damages limited to $250,000 per
patient) do not violate the Colorado Constitution's right to a jury
trial in a civil case, because there is no such constitutional right;
(4) these HCAA damages caps do not infringe impermissibly on the judicial
remittitur authority; (5) these HCAA damages caps do not violate the
separation of powers by contravening this court's rules regarding jury
trial and the trial court's role in entering judgment and ruling on
post-trial motions set forth in C.R.C.P. 38, 39(a), 58, and 59; (6)
these HCAA damages caps do not violate constitutional equal protection
provisions based on an alleged fundamental right to a jury trial in
a civil case, because there is no such Colorado constitutional right;
and (7) as to the equal protection claim involving an inflationary adjustment
to the noneconomic damages cap, no disparate treatment exists because
the inflationary adjustment provision of the general negligence act
applies only to claims that accrue on or after January 1, 1998. On the
defendant's cross-claims In a ruling stemming from the U.S. Supreme Court's decision in Crawford v. Washington, the supreme court holds that before a witness's previous testimony can be used at trial, the witness must be unavailable to testify at trial and the defendant must have had an adequate prior opportunity to cross-examine that witness. Because of the limited scope of a preliminary hearing in Colorado, that hearing does not provide an adequate opportunity for cross-examination sufficient to meet Confrontation Clause requirements. Therefore, the court held that an unavailable witness's preliminary hearing testimony was improperly admitted at trial. Justice Coats, joined by Justice Kourlis, dissented, believing that Crawford compelled the opposite conclusion from that the majority reached. People v. Fry Claim preclusion
(res judicata) does not bar unnamed members of a class certified pursuant
to C.R.C.P. 23(b)(2) to seek injunctive relief from bringing individual
claims for damages. Jahn
v. ORCR, Inc.
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